RUTHFULLY YOURS

From the beginning of the Michael Flynn case, Judge Sullivan has been hostile to Flynn. By December 2018, based upon a misreading of the facts, Sullivan accused Flynn of conduct amounting to treason and said that he felt “disdain” and “disgust” for what he believed Flynn had done.

Sullivan’s behavior, however, went from hostile to bizarre when the Department of Justice, having uncovered massive wrongdoing the FBI’s and DOJ’s handling of the Flynn matter, moved to dismiss the case. On Saturday, though, Judge Sullivan managed to escalate from bizarre to . . . well, maybe paranoid is the correct word.

A Motion to Dismiss a criminal case is a routine procedure when the government realizes, for whatever reason, that there is no further reason to prosecute a defendant. Because the Constitution gives the prosecutor sole discretion about whether to bring a case and then, having brought it, whether to miss it, the judge has a limited role – and that role is to protect the defendant.

Thus, it is the judge’s responsibility to make sure that the government isn’t toying with the defendant by dismissing a losing case while intending to refile in the hopes of drawing a more amenable judge or jury. Absent that problem, the judge’s only job is to rubber-stamp the dismissal.

Judge Sullivan refused to use that rubber stamp. He also declined to act as Flynn’s last defense against an overreaching prosecution.

Instead, Sullivan did something strange. He asked a retired judge, one who had published in the Washington Post an article hostile to the motion to dismiss, to file a brief with the court opposing the motion. Then, although he had consistently (and properly) denied third parties the right to file advisory briefs with the court, Sullivan invited such submissions to help oppose the motion to dismiss.

Flynn’s attorney, the doughty Sidney Powell, therefore filed a petition for writ of mandate with the District of Columbia Circuit Court of Appeal, asking that it force Flynn to grant the motion to dismiss, negate the requests for helpful briefs, and remove Sullivan from the case.

This type of mandate petition is notorious for its failure rate. Appellate courts do not like to involve themselves in a case before it’s reached its conclusion. This time, however, the appellate court not only took up the writ petition, it ordered Judge Sullivan to explain himself. This doesn’t mean Flynn will win on the writ – the appellate court may just be insulating itself from the fallout if it rules against Flynn – but one can’t help but be hopeful.

It’s worth noting here that, while Sullivan may be acting in a partisan and inappropriate way in the Flynn case, he is a very experienced judge with a solid resume. He has an undergraduate degree from Howard University and got his law degree from Harvard before it turned into a politically-correct swamp. He’s been a judge since 1984.

With his background, one has to presume that Sullivan knows the law, knows how to write and, of course, knows his mind. When asked to explain himself to an appellate court, he should be able to sit down for a quiet hour or two and write out a document that includes his views about the facts and the law in Flynn’s case.

But that’s not what Sullivan did. Instead, Sullivan hired Beth Wilkinson, a very high-profile Washington D.C. attorney to represent him before the appellate court. From a legal standpoint, this is beyond strange.

You have to understand that, in the ordinary course of appellate rulings, all that happens is that the lower court’s order is affirmed or reversed. It’s not about the judge; it’s about the judge’s ruling. In this case, the appellate court is asking the judge to explain his ruling, meaning that it’s still not about Sullivan qua Sullivan. Instead, the court wants to understand Sullivan’s thought processes to see if there’s anything there that could justify his decision-making.

When Sullivan armed himself with a lawyer, he effectively announced to the world that this isn’t just about whether the court will reverse his decision-making or remove him from the case. Instead, Sullivan is worried that the appellate court will look at his conduct, rather than his legal reasoning.

No wonder, then, that a million theories suddenly emerged about his having been bribed to rule as he did, about his possible conflicts of interest, and about his possibly unsavory family connections. You name it, and people thought it – and rightly so because for a judge to hire a lawyer under these circumstances practically screams out that there’s something wrong here.