Michael Flynn Circus Devolves Into Court-Weaponized Partisanship
Media reports following Friday’s oral argument in the Michael Flynn criminal case focused on the D.C. Circuit Court of Appeals’ apparent hesitancy to order Judge Emmet Sullivan to dismiss the criminal charge against Flynn. But a second and more troubling theme went unnoticed: the further politicalizing of the judicial system.
The right has long condemned the unfortunate conversion of the third branch from a neutral arbiter of the law to a politically motivated policymaker. No longer do judges say what the law is; they pretend the law says what they want it to say. Last week’s oral argument exposed a further degeneration of our supposedly impartial judiciary—that judges are moving beyond policymaking to outright electioneering.
Sullivan, the trial judge presiding over the Flynn criminal case, crossed that line when he appointed retired judge John Gleeson to serve as an amicus curiae, or friend of the court, and direct Gleeson to oppose the government’s motion to dismiss the criminal charge against Flynn. Flynn, who had entered into a plea agreement with the special prosecutor’s office for making false statements to FBI agents, sought to withdraw his plea and have the charge dismissed based on ineffective assistance of counsel and evidence of prosecutorial misconduct.
While that motion remained pending, an independent review of the case by Missouri-based U.S. Attorney Jeff Jensen revealed prosecutors had withheld material exculpatory evidence from Flynn. Based on his review and that evidence, Jensen recommended dismissal of the charge against Flynn.
Following this recommendation, the acting U.S. attorney for the District of Columbia filed a motion to dismiss the charge against Flynn, supporting that motion with a detailed explanation of the Department of Justice’s reasoning, along with copies of the evidence improperly withheld from Flynn. Yet rather than dismiss the case, Judge Sullivan announced he would accept amicus curiae briefs from the public, then appointed Gleeson as a friend to the court to argue against dismissal.
Appointing a Deeply Biased ‘Friend of the Court’
Sullivan’s selection of Gleeson gave the game away because, just two days earlier, Gleeson’s co-authored anti-Flynn, anti-Trump op-ed ran in the Washington Post. In that opinion article, Gleeson argued the charge against Flynn should not be dismissed and proclaimed “the record reeks of improper political influence.”
When Gleeson filed his amicus brief last week with the trial court, just days before the D.C. Circuit’s oral argument, he provided Sullivan everything he wanted and then some. In a 70-page screed, far exceeding the 25-page maximum allowed by court rules—a standard Sullivan waived for the purpose—Gleeson took America on a reunion tour of the Russia collusion hoax, before impugning the integrity of Attorney General William Barr and President Donald Trump. Flynn was once again merely collateral damage.
So obvious was Gleeson’s political hit that even the soft-spoken Judge Karen Henderson branded the amicus “intemperate” and his brief “over the top” during last week’s oral argument before the D.C. Circuit. But by then the press had already presented Gleeson’s brief as conclusive evidence of malfeasance—by Flynn, Barr, and Trump—establishing Gleeson’s brief served as the judicial equivalent of the Christopher Steele dossier.
Political Cronyism Endemic to This Case
Using the law firm of Perkins and Coie as a conduit, Hillary Clinton and the Democratic National Committee (DNC) funded the conspiracy claims Steele peddled to the Federal Bureau of Investigation and DOJ. The FBI and DOJ then provided the Clinton team a government assist in the 2016 election year targeting of the Trump campaign.
Now we see Gleeson enlisted a cadre of lawyers to help craft the “over the top” brief he provided Sullivan as the court-appointed amicus. The handful of lawyers named on Gleeson’s brief included donors to Biden for President, as well as a former Obama administration attorney who later represented Trump-fired former DOJ official Sally Yates during her congressional testimony concerning Crossfire Hurricane.
Maybe Biden and the DNC didn’t compensate these lawyers for their work, but heading into the 2020 election, the Democrat presidential candidate surely benefitted from this pro bono work. And by opening his courtroom to Gleeson and other anti-Flynn amici, Judge Sullivan has converted the judicial branch into an emissary of the Democratic Party, much as James Comey and Andrew McCabe converted the FBI into an opposition-research arm of the DNC.
Government Backing of Politically Biased Attacks
Further, just as the FBI’s briefing to Trump on the “salacious and unverified dossier” created an appearance of legitimacy to the Democrat propaganda, Judge Sullivan provided a government imprimatur to the anti-Trump ramblings in Gleeson’s brief. While in the case of Steele’s dossier, someone needed to leak details of Comey’s briefing of the dossier to Trump to the media, Judge Sullivan’s public docket provides the press access to the friends of Biden brief.
And the media responded predictably: “Outsider Tapped in Flynn Case Calls Justice Dept. Reversal a ‘Gross Abuse’ of Power,” The New York Times proclaimed. “A former federal judge said that the attorney general gave special treatment to a presidential ally, undermining public confidence in the rule of law,” the Times continued.
The Washington Post parroted this narrative in its coverage of Gleeson’s filing, writing that “a former federal judge appointed to review the Justice Department’s motion to dismiss criminal charges against President Donald Trump’s former national security adviser Michael Flynn said there was evidence of a ‘gross abuse’ of prosecutorial power and that the request should be denied.”
Ruining a Man’s Life for Political Revenge
During Friday’s oral argument, Flynn’s attorney Sidney Powell and the DOJ, represented by Principal Deputy Solicitor General Jeff Wall, entreated the D.C. Circuit to end the spectacle Judge Sullivan started. Powell, who had petitioned the appellate court for mandamus—legal jargon for an order directing a lower court to act as required by law—stressed the toll to her client from the unnecessary prolonging of the proceedings, calling it “irreparable harm.”
“The harms are obvious to General Flynn,” Wall concurred, but further argued that the politicization of the process necessitated the appellate court to act now, rather than wait for Judge Sullivan to hold a hearing on the government’s motion to dismiss in mid-July.
“We can’t ignore that it is playing out in a politicized environment that has been made worse by” the 70-page amicus curiae brief, “which alleges the president and attorney general have engaged in great misconduct,” Wall stressed. Judge Sullivan’s behavior threatens not merely “the executive and its prosecutorial discretion and its deliberative process, but frankly, threatens to do harm to the judiciary as well,” Wall added.
“The court has to take account of the fact that [Judge Sullivan’s] brief and amicus impugn the motives of the attorney general of the United States,” the DOJ attorney argued, and that is going to pull the judiciary into a political fight.
Obama Appointee Plays the Race Card
That clearly was what Judge Sullivan wanted when he named Gleeson as amicus mere days after Gleeson co-authored the anti-Flynn op-ed. But even more disconcerting than Sullivan’s politicization of the process was the suggestion by a second member of the appellate panel, Obama appointee Judge Robert Wilkins, that the judicial branch should engage in such a ploy. Wilkins made that suggestion with an emotive hypothetical that, had the press played along, could have triggered more of the violent protests we have seen over the last two weeks.
In questioning Wall on the government’s position, Judge Wilkins asked whether a district court judge must grant the government’s motion to dismiss an excessive force case against a white police officer where “the prosecutor was dismissing the case because it did not believe that a white police officer should have to answer for using excessive force on a black defendant.”
Dismissal would be required in that case, Wall explained, because the court cannot force “the executive to keep the case alive.” But in that circumstance, “for that kind of equal protection violation,” Wall continued, the remedy would be in other cases where a black defendant faced prosecution that a white accused avoided.
Judge Wilkins raised the hypothetical again later, positing that where such racist motives were in play a federal judge should refuse to dismiss the case to put political pressure on the prosecutor: “So why isn’t it the case if the government makes a considered but racist decision, that it just doesn’t want to have a white officer stand trial for excessive force on a black victim, that the district court can deny the motion and then the political chips can fall where they may, and perhaps under pressure on the public or Congress or whatever, the district court may not be able itself to force the government to prosecute the case, [but] maybe from the pressures from the media, a new prosecutor is appointed and the case proceeds?”
Wall reiterated the government’s position that a court cannot force the executive to keep the case alive, but also stressed that “we don’t have anything like that here.” That fact, coupled with the tinder-box atmosphere that has enveloped the country for the last two weeks, is what made Judge Wilkins’ question so shocking.
Why Politicizing the Courts Is Bad for America
Yes, judges pose difficult hypotheticals during oral argument to push the limits of a party’s position, but this case had nothing to do with race or excessive force, or even an allegedly unconstitutional motive underlying the government’s motion to dismiss the charge against Flynn. One must wonder if Judge Wilkins formulated this line of questioning for the press, envisioning politically damaging headlines of “Trump’s DOJ Say It Has Right Not to Prosecute White Police Officers.”
At a minimum, Judge Wilkins acted imprudently in presenting this hypothetical, given the publicity surrounding Friday’s hearing and the ability for false narratives to speed quickly on social media. With as many as 17 people killed in the aftermath of George Floyd’s death, it was irresponsible for the appellate judge to suggest—even in a hypothetical—that racism might prompt the federal government to refuse to prosecute a white police officer in an excessive force case involving a black victim.
Judge Wilkins’s further suggestion that a court should refuse to dismiss criminal charges to allow the media, the public, and politicians to exert enough pressure that “a new prosecutor is appointed and the case proceeds” is troubling for a different reason: It exposes that Wilkins views the judiciary as a political creature, and not the impartial branch—blind to emotions and unmoved by the passions or pleas of the public—our Founders entrusted to interpret the law.
Given Judge Wilkins’ query, he clearly intends to allow Judge Sullivan to continue the political spectacle he started with the appointment of Gleeson, and may even join in with a politically charged concurrence or dissent when the D.C. Circuit rules on Flynn’s mandamus petition, which is likely to come later this week or next. What that ruling will be, though, is anyone’s guess, because, while Judge Naomi Rao seemed inclined to grant mandamus, Judge Henderson seemed reticent to intercede until Judge Sullivan issues a decision on the motion to dismiss in the first instant.
But Judge Henderson also made clear her view that the motion to dismiss should be granted. The question Judge Henderson is likely still grappling with is whether the harms Powell and Wall laid out—to Flynn, to the executive branch, and judiciary—justify ending the spectacle now. For Flynn’s sake, and for our country’s sake, hopefully she answers yes.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.