Rejection of the case against former National Security Advisor Michael Flynn triggered shock waves across Washington, including Congress, which was hours away from a hearing that dealt with the case. Any appeal decision that takes unprecedented action to prevent "irreparable harm" and "irregular" behavior is timely. However, these warnings did not describe Flynn's behavior, but that of his trial judge, the US district judge Emmet Sullivan. The DC Circuit Panel took the exceptionally rare step of instructing Sullivan to stop proceedings and dismiss the case to avoid further harm caused by his previous orders.
The case should have been dismissed
A month ago I wrote a column criticizing Judge Sullivan's treatment of Flynn after the government dismissed her own law enforcement.
The law in this case is clear and the case should have been dismissed. Instead, Sullivan took the extraordinary measure to appoint a retired judge, John Gleeson, to argue positions that none of the actual parties supported. Gleeson not only publicly denounced the administration for dealing with the case, but was reversed as a judge for "irregular" conduct in usurping the prosecutor's authority. In addition, Sullivan suggested that Flynn be accused of perjury that he had been wrongly indicted in his case, despite the Justice Department's support in uncovering abuses.
Criticizing Sullivan, whom I have seen as a lawyer for years and previously praised for his appearance, was not popular. Legal analysts at the Washington Post, CNN, and other outlets insisted that his actions were entirely reasonable and justified. Another letter from "former prosecutors" has no doubt been published in the media to show that Sullivan should refuse the request in this case.
In a hearing from UCLA law professor and former US lawyer under Bill Clinton, Harry Litman even explained at these hearings how Sullivan could "make trouble" with the Trump administration. Litman insisted that I was "a very lonely voice in the wild" of science when I contested the use of an outside lawyer to bring up arguments in criminal proceedings that were not supported by the defense or prosecutors.
The Die Wildnis now seems to contain at least two more voices from the DC Circuit. The panel specifically condemned the "irregular" use of Gleeson and his hyperbolic arguments in the case. Gleeson suggested that the court should actually send Flynn to prison, despite prosecutors providing evidence of misconduct and abuse as the basis for the release. He also argued that instead of taking Flynn to court on a new Sullivan charge of perjury, Flynn should only be convicted in the light of such perjury as part of his previous non-perjury charge.
Even for those of us who believed that in such a case, Sullivan was operating far outside the navigation beacons for a court, the decision was breathtaking. Most of us expected the Court of Appeals to remit the case to allow Sullivan a face-saving hearing with an inevitable notice of dismissal. However, the panel clearly had little confidence in the plans for this hearing or in any real judicial purpose. Indeed, one might be convinced that the main purpose was to "trouble the administration".
As some of us wrote earlier, the Court of Appeals was particularly alarmed at the impact of Sullivan's orders, including the finding that the "invitation to the general public to appear as Amici …" The panel said that such an invitation from Sullivan "does not suggest anything but a circumscribed review". It also found that the Justice Department had provided worrying evidence of possible wrongdoing. And that "each of our three equal branches should be encouraged to correct himself if he is wrong."
Gleeson, wrong appointment
The biggest irony is that Sullivan's unwise decision to appoint Gleeson may have been too successful. Gleeson was ultimately not against Flynn, but against Sullivan. When reviewing Gleeson's mandate, the panel said: “We don't need to guess whether this irregular and searching review will continue. it already has. "The panel found that Sullivan's appointed lawyer" relied on news, tweets, and other off-file facts to compare the government's reasons for being released here with those for law enforcement in other cases. "
The panel was also aware of past concerns, including the rather bizarre first hearing in December 2018. In that hearing, Sullivan suggested that Flynn be sued in a case where there were comparatively low charges against the Confederation for making false statements investigators could be guilty of treason. Sullivan dramatically used the flag in the courtroom as a prop and accused Flynn of "being an unregistered agent of a foreign country while acting as the President's national security adviser. That probably undermines everything this flag stands for. You have probably sold out your country. "(He later apologized for his comments.)
The irony, however, is that Sullivan was the best thing that could have happened to Flynn. After this annoying exchange, Sullivan asked if Flynn still wanted him to judge him or wait. He indicated that he could go far beyond what Special Counsel Robert Mueller's team had asked for. Flynn wisely decided to wait. The resulting delay allowed the malicious evidence from his case to be reviewed and released. If Sullivan had simply condemned Flynn last December, it would have been much more difficult for Flynn to ask these questions.
Sullivan then issued his novel orders, including the appointment of his own lawyer, to advocate law enforcement against the actual prosecutors.
This record turned out to be too much for the court of appeal. Instead of releasing Sullivan from the case, she decided to order Sullivan to dismiss the case. Aside from an order to actually reject a judge, a mandamus order is the worst charge against handling a case that can come from an appeals court.
In this case, the judgment is unlikely to require genuine prudence from legal analysts or the media in previous reporting. Nuanced legal issues quickly disappear in this age of anger. Contradictory case law is rejected in favor of the clarity required by echo journalism. However, the law brings its own clarity and the message of this opinion could not be clearer. Sullivan's actions in this case did not pose "problems" for the Trump administration, but problems for the administration of justice in our judicial system.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University and a member of the USA TODAY Board of Contributors. Follow him on Twitter: @JonathanTurley