Below is my column in USA Today on the D.C. Circuit ordering Judge Emmet Sullivan to dismiss the case of former National Security Adviser Michael Flynn. After this column ran, new evidence emerged that further undermined the FBI and the targeting of Flynn, as discussed in another recent column. Notes from fired FBI Special Agent Peter Strzok show that former FBI Director James Comey told President Barack Obama and Vice President Joe Biden that Flynn's call to the Russian diplomat "appear legit."
Nevertheless, Biden (who denied having anything to do with the case) is noted as raising the idea of a charge under the facially unconstitutional Logan Act, a law that has never been used successfully to charge a single person since the beginning of this Republic.
Comey of course was the one who later bragged that he "probably wouldn't have ... gotten away with it" in other administrations, but he sent "a couple guys over" to question Flynn, who was settling into his new office as national security adviser. We now know that, when Comey broke protocols and sent the agents, he thought the calls were legitimate and that agents wanted to dismiss the investigation in December for lack of evidence. They were prevented from doing so as Strzok, Biden, and others discussed other crimes, any crime, to nail Flynn just before the start of the Trump Administration.
If all of that seems "illegitimate" and "irregular," it pales in comparison to how two judges on the D.C. panel reviewed the handling of the Flynn case by Judge Emmet Sullivan. It seems that everyone from the President to the Vice President to the FBI Director to ultimately the federal judge have engaged in a dangerous form of improvisational law when it came to Michael Flynn. That will now hopefully end though many questions still remain.
It is possible for Judge Sullivan to appeal, though the upcoming hearing on Flynn has been removed from the docket.
Here is the column:
The dismissal of the case against former National Security Adviser Michael Flynn sent shock waves across Washington, including Congress which was hours away from a hearing addressing the case. Any appellate decision taking unprecedented measures to stop "irreparable harms" and "irregular" conduct is newsworthy. However, those admonishments were not describing Flynn's conduct but that of his trial judge, U.S. District Judge Emmet Sullivan. The D.C. Circuit panel took the exceptionally rare step of ordering Sullivan to stop further proceedings and dismiss the case to avoid further damage caused by his prior orders.
The case should have been dismissed
One month ago, I wrote a column criticizing the handling of the Flynn case by Judge Sullivan after the government moved to dismiss its own prosecution.
The law in this case is clear and the case should have been dismissed. Instead, Sullivan took the extraordinary action of appointing a retired judge, John Gleeson, to argue positions that neither of the actual parties supported. Gleeson not only had publicly denounced the administration over its handling of the case but, as a judge, was reversed for "irregular" conduct in usurping the authority of prosecutors. In addition, Sullivan suggested that he might charge Flynn with perjury for alleging that he was wrongly charged despite the support of the Justice Department in finding abuses in his case.
Criticizing Sullivan, who I have appeared before for years as counsel and previously complimented for his demeanor, was not popular. Legal analysts in The Washington Post, CNN and other outlets insisted that his actions were entirely appropriate and justified. Yet, another letter from "former prosecutors" was given unquestioning media coverage to show that Sullivan should deny the motion in the case.
In an opinion piece, UCLA Law Professor and former U.S. Attorney under Bill Clinton, Harry Litman even explained how Sullivan could "make trouble" for the Trump administration in these hearings. Litman insisted that I was "a very lonely voice in the wilderness" of academia in contesting the use of an outside lawyer to make arguments in a criminal trial case that neither the defense nor the prosecution supported.
The wilderness now appears to include at least two other voices from the D.C. Circuit. The panel specifically denounced the "irregular" use of Gleeson and his hyperbolic arguments in the case. Gleeson suggested that the court should actually send Flynn to jail despite prosecutors raising evidence of misconduct and abuse as the basis for dismissal. He also argued that, rather than give Flynn a trial on a new charge from Sullivan of perjury, Flynn should just be sentenced in light of such perjury as part of his prior non-perjury charge.
Even for those of us who believed that Sullivan was operating well outside of the navigational beacons for a court in such case, the decision was breathtaking. Most of us expected that the appellate court would remand the case to allow Sullivan a face-saving hearing with an inevitable order to dismiss. The panel, however, clearly had little trust in the plans for this hearing or any true judicial purpose. Indeed, it may have been convinced that the primary purpose was indeed to "make trouble" for the administration.
As some of us wrote previously, the appellate court was particularly alarmed by the implications of Sullivan's orders, including noting that the "invitation to members of the general public to appear as amici..."The panel said that such an invitation by Sullivan "suggests anything but a circumscribed review." Moreover, it noted that the Justice Department had submitted troubling evidence of possible misconduct. And that "each of our three coequal branches should be encouraged to self-correct when it errs."
Gleeson, wrong appointment
The greatest irony is that Sullivan's unwise decision to appoint Gleeson to make the case was perhaps too successful. Gleeson ultimately proved not the case against Flynn but against Sullivan. In reviewing Gleeson's brief, the panel declared "we need not guess if this irregular and searching scrutiny will continue; it already has." The panel noted that Sullivan's appointed counsel "relied on news stories, tweets, and other facts outside the record to contrast the government's grounds for dismissal here with its rationales for prosecution in other cases."
The panel was also aware of past concerns raised in the case, including the rather bizarre first sentencing hearing held in December 2018. In that hearing, Sullivan suggested that Flynn might be guilty of treason in a case involving comparatively minor charges of false statements to federal investigators. Sullivan dramatically used the flag in the courtroom as a prop and accused Flynn of being "an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. Arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out." (He later apologized for his comments.)
The irony, however, is that Sullivan proved the best thing that could have happened to Flynn. After that unnerving exchange, Sullivan asked if Flynn still wanted him to sentence him or wait. He indicated that he might go substantially beyond what Special Counsel Robert Mueller's team had demanded. Flynn wisely decided to wait. The resulting delay allowed the damaging evidence from his case to be review and released. Had Sullivan simply sentenced Flynn last December, it would have been much more difficult for Flynn to have raised these issues.
Sullivan then handed down his novel orders including appointing his own counsel to argue for prosecution against the actual prosecutors.
This record proved too much for the appellate court. Rather than order Sullivan off the case, it decided to order Sullivan to dismiss the case. Short of an order of actual recusal of a judge, a mandamus order is the most stinging indictment of the handling of a case that can come from an appellate court.
The ruling in this case is unlikely to force any real circumspection by legal analysts or the media in the prior coverage. Nuanced legal questions quickly evaporate in this age of rage. Conflicting case law is dismissed in favor of the clarity demanded by echo journalism. The law however brings its own clarity and the message of this opinion could not be clearer.
Sullivan's actions in the case did not spell "trouble" for the Trump administration, but rather, they spelled trouble for the administration of justice in our court system.