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 Sulllivan 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.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley
