Apparently both the left and the right are outraged at aspects of Judge Sullivan's decision to delay granting the Department of Justice’s motion to drop the case against Michael Flynn. But while one side respects the separation of powers and the rule of law, the other side is acting like a schoolyard bully making threats.
To our minds, Judge Sullivan blurs separation of powers when he appointed a retired judge who publicly expressed opinions against Flynn to review the case and accept amicus curiae briefs. Judge Sullivan seems to be acting like a prosecutor, not an “umpire” judge. While we consider Judge Sullivan’s decision extremely troubling, we think Flynn’s lawyers took the appropriate course of action in this case by requesting a writ of mandamus.
In the simplest terms, this respects the rule of law and allows the appellate court to decide if the judge acted legally. Early signs are the D.C. Circuit seems troubled. As Andrew McCarthy wrote yesterday:
Today, the U.S. Court of Appeals for the D.C. Circuit, on its own motion, ordered Judge Sullivan to respond within ten days to the petition for a writ of mandamus filed by Michael Flynn. Earlier this week, Flynn’s counsel, Sidney Powell, filed the petition for that extraordinary writ, asking the appellate court to instruct Sullivan to grant the Justice Department’s motion to dismiss the case against Flynn.
That was after Judge Sullivan not only declined to grant the prosecution’s motion, but (a) invited non-parties to intervene in the case by filing amicus briefs (transparently, to make arguments that he somehow has authority to deny DOJ’s motion); and (b) appointed one amicus, former federal judge John Gleeson, as a quasi-prosecutor to make arguments that prosecutors are declining to make in favor of entering a judgment of conviction and sentencing Flynn.
As I noted yesterday, Sullivan’s encouragement of amicus briefs, which are not authorized in criminal cases, flies in the face of Sullivan’s own very firm orders previously declining to permit amicus briefs in Flynn’s case — some two dozen times by Ms. Powell’s count.
The appointment of Gleeson is equally astonishing and offensive to the principle of courts as impartial arbiters. Gleeson — who worked at the U.S. attorney’s office for the Eastern District of New York with Loretta Lynch (later President Obama’s attorney general) and Andrew Weissmann (chief prosecutor on the Mueller probe that brought the Flynn case — and now a Biden for President fundraiser) — has co-written a Washington Post op-ed portraying the Justice Department’s dismissal motion as an abuse of power.
In this hyper partisan environment with a case that was a cornerstone of the Russian collusion hoax, political bias is likely to be charged. It is thus worth noting, as Paul Mirengoff did at Powerline:
The U.S. Court of Appeals for the D.C. Circuit has ordered Judge Sullivan to respond within ten days to the petition for a writ of mandamus filed by Michael Flynn. . . . [The panel] consists of Karen LeCraft Henderson, a Bush 41 appointee, Naomi Rao, a Trump appointee, and Robert Wilkins, who was appointed by Obama.
That panel’s order is “per curiam.” There is no indication that Judge Wilkins disagreed with it.
The latter is important as Rhode Island’s bully Senator Sheldon Whitehouse chose to attack one member of the court in an attempt to bully or undermine the court’s legitimacy.
Where you see Neomi Rao, you can expect a lot of Trumpy dirt to follow. She’s a cartoon of a fake judge. Watch this space.https://t.co/aOPt7HKweo— Sheldon Whitehouse (@SenWhitehouse) May 21, 2020
Senator Whitehouse, is Judge Wilkins, appointed by Obama, a "fake judge"? Why did Sen. Whitehouse pick out Judge Rao, a minority woman of a minority religion? As former Senate Judiciary Committee counsel and TV commentator Gregg Nunziata points out:
This is an appalling attack on the independent judiciary. Even worse, it's personally directed at a woman of color. I assume this will be widely denounced in the media and by anyone of good faith. https://t.co/angujlkUPS— Gregg Nunziata (@greggnunziata) May 22, 2020
Sean Marotta adds a note on her qualifications:
Respected former law professor. Former head of OIRA. Former #SCOTUS clerk. I guess attacking accomplished female judges who are the daughters of immigrants is okay when you think they won't rule how you want them to. https://t.co/acw4qYNMJ8
— Sean Marotta (@smmarotta) May 22, 2020
But this is nothing new for Senator Whitehouse. As Carrie Severino points out:
This is the guy who introduced "boofing" into the national vocabulary. He has threatened the Supreme Court in an amicus brief. And now personally attacking a federal judge? https://t.co/SHox3fo46K— Carrie Severino (@JCNSeverino) May 22, 2020
Cato Institute scholar and frequent RNLA guest speaker Ilya Shapiro said:
The senator (had to check to make sure this wasn't a spoof account) who threatened the Supreme Court in an amicus brief now goes after a judge who could run intellectual circles around him. Maybe he's threatened by strong women. https://t.co/G3WsivYDIZ— Ilya Shapiro (@ishapiro) May 22, 2020
To review. Republicans and conservatives disagree with a court, they follow the rules and procedures. Democrats disagree, they threaten and call names. We are hopeful the voters will remember this in November. The last word goes to Sen. Ted Cruz:
Shameful. Senate Dems, tired of threatening Supreme Court Justices, turn to the court of appeals for their partisan campaign of judicial intimidation. https://t.co/FrBdvmlgUs— Ted Cruz (@tedcruz) May 22, 2020