Judge Emmet Sullivan appeared as unofficial amicus curiae for the Resistance in the D.C. Circuit Court of Appeals in the Michael Flynn criminal case yesterday.
Sullivan, who has presided over the Flynn case since December 2017, was ordered by the federal appellate court to respond to Flynn’s previously filed petition for a writ of mandamus. Flynn sought the writ of mandamus after federal prosecutors moved to dismiss the criminal charge the special counsel’s office had filed against him in late 2017.
Flynn originally pleaded guilty to the charge of lying to FBI agents about his December 2016 telephone conversations with the Russian ambassador. But after hiring new defense counsel, led by Sidney Powell, Flynn sought to withdraw his guilty plea.
Sullivan had yet to rule on Flynn’s motion to withdraw his guilty plea when an outside review, conducted by Missouri-based U.S. Attorney Jeff Jensen, uncovered evidence previously withheld from Flynn’s defense team. That evidence established that the statements Flynn made to the FBI agents, even if false, were immaterial and thus not criminal. Accordingly, the then-acting U.S. attorney for the District of Columbia moved to dismiss the criminal charge.
Rather than grant that motion, however, Sullivan appointed retired federal Judge John Gleeson amicus curiae to argue against dismissing the criminal charge and also to determine whether Flynn should be held in criminal contempt of court. A few days later, Powell filed a petition for mandamus with the D.C. Circuit Court of Appeals — an extraordinary procedure used to force a lower judge to act according to the law — arguing that Sullivan’s denial of the motion to dismiss violated the constitutional separation of powers because the executive branch holds exclusive power to decide when to prosecute cases and when to dismiss them.
While federal appellate courts routinely dispose of petitions for mandamus without additional briefing, the D.C. Circuit took the unusual tack of ordering Sullivan to respond to the petition within 10 days. Yesterday he did, through legal counsel he hired and we, as taxpayers, paid: Beth Wilkinson.
Sullivan Responds to the Petition
The 36-page response brief filed late Monday spent nearly half the space discussing the “facts” of the Flynn criminal prosecution, albeit with the narrative mirroring that sold by the left-leaning press, pundits, and politicians. The biggest tell came in the opening lines when Sullivan, through counsel, said, “[I]t is unprecedented for an Acting U.S. Attorney to contradict the solemn representations that career prosecutors made time and again.”
The longtime federal judge repeated this refrain throughout the brief, suggesting impropriety in the decision-making of the acting U.S. attorney. That it was the “career prosecutor” who withheld material exculpatory evidence from Flynn garnered nary a word. Nor did Sullivan as much as acknowledge that the decision to dismiss the charge came following an outside review and the discovery of the previously withheld evidence that eviscerated the charge against Flynn.
Sullivan also used substantial space repeating the familiar mantra that Flynn had pleaded guilty twice, but then sidestepped the overwhelming evidence indicating Flynn’s plea was involuntary and the result of ineffective assistance of counsel.
But Sullivan still found ample space to discuss “the unique facts of this case,” that he maintains “raised plausible questions about the presumption of regularity afforded to prosecutorial decisionmaking.” These so-called facts tracked much of the fake news peddled daily by the press.
Sullivan’s discussion of these “plausible questions” also makes clear he no longer seeks to be an impartial jurist but desires the role of prosecutor: He is the ultimate adversary — to both Flynn and federal prosecutors.
Sullivan Proved the Need for Mandamus
While Sullivan’s entire response is weak and screams of bias, his final point actually proves Powell’s case for mandamus. In closing, Sullivan argues the D.C. Circuit should deny Flynn’s petition for mandamus because he has yet to rule on the government’s motion to dismiss. Here, Sullivan stresses that mandamus is rare and is only appropriately granted when no other remedy is available. He then posits that, since Flynn could appeal any future denial of his motion to dismiss, there is no reason for mandamus now.
This point cannot withstand scrutiny, however, because as the brief filed yesterday by a group of U.S. senators argued, there is no longer a live “case or controversy” in the Flynn case. The senators’ amici curiae brief makes this brilliant point, overlooked by many: Sullivan is not merely violating Article II of the Constitution, which grants prosecutorial discretion solely to the executive branch. He is also violating Article III of the Constitution by attempting to rule in a case where there is no “case or controversy.”
Because both parties agreed to dismissal of the case — the federal government on one hand and Flynn on the other — there no longer remains a live dispute subject to a federal court’s jurisdiction. Article III provides that the judicial power of the United States extends only to cases and controversies.
Without a live dispute, any decision Sullivan renders (or purports to render) would consist of an improper advisory opinion. Thus, by arguing that mandamus should be denied because he has yet to rule on the motion to dismiss, Sullivan has proved the need for mandamus: to prevent him from issuing an advisory opinion.
Whether the D.C. Circuit will grant mandamus and direct Sullivan (or, more properly, another judge to whom the case is reassigned) to dismiss the criminal charge against Flynn is unknown. But Flynn has the Constitution on his side; Sullivan has only the Resistance.