Sigmund Freud dies and goes to Heaven, where he’s met at the Pearly Gates by Saint Peter.
“Dr. Freud, thank goodness you’ve come! We have a crisis and need your professional help!”
“How so?” asks Freud.
“It’s God. He’s having delusions of grandeur.”
“What are His symptoms?” asks Freud.
“He thinks He’s a federal judge!”
— Old trial lawyer joke
For five decades as a courtroom lawyer, I have devoted an inordinate amount of time to humbling myself and stroking the egos of federal and state judges while catering to their every whim and belief, no matter how mistaken, unfounded, or unjustified. It’s part of the job. The more successful you are at sucking up to the robed potentates on the bench, the better it is for your clients.
Although many times I have been tempted to tell a judge to shove it, my duty to my client has held me back. While on occasion I have been held in contempt, fined, and — most memorably — placed under arrest for speaking the truth, for the most part and my clients’ welfare, I have kept my mouth shut.
It’s never a fair fight. The judge holds the power and knows that lawyer and client are at his mercy. In my experience, the more egocentric and mediocre the judge, the more inclined he is to be the courtroom bully and to arbitrarily exercise his power free from the constraints of the substantive law and established procedure. And when one of these mediocrities arrives at a patently illegal result, he will dismiss your pleas and objections with an impatient wave of the hand or bang of the gavel.
“You don’t like my ruling, counselor? Then take an appeal!”
Now the ball is in Judge Sullivan’s court. Will he comply with the mandamus writ and grant the motion to dismiss? Or will he seek a rehearing en banc by all 12 active (as opposed to senior) D.C. Circuit judges in the hope of having the panel decision reversed and the mandamus lifted?
But, of course, the judge will say this knowing that appeals are time-consuming, expensive, and have a far less than even chance of undoing the illegal outcome that he has created.
All of which brings us to the challenge faced by the very able Sidney Powell as she has dealt with U.S. District Judge Emmet Sullivan, who has refused to grant the prosecution’s motion to dismiss the outrageous, politically motivated, and legally deficient frame-up of Gen. Michael Flynn. In her excellent book Licensed to Lie, Powell lionized Judge Sullivan as the hero who dismissed the charges against the late Sen. Ted Stevens (R-Alaska), who had effectively been framed by federal prosecutors who had hidden and withheld clearly exculpatory evidence.
Sen. Stevens was convicted eight days before Election Day 2008 on seven counts of making false statements on financial disclosure forms to purportedly hide approximately $250,000 in gifts and free renovations to his home in Alaska. Unsurprisingly, he lost the election and his Senate seat.
But, in April 2009, after learning that the prosecutors had withheld notes that contradicted testimony by their key witness, Attorney General Eric Holder moved to dismiss the case against Stevens. Despite the fact that the senator had been convicted following a jury trial, Judge Sullivan granted the motion and dismissed the case.
Given that precedent, it was more than reasonable for Powell to expect that Judge Sullivan would follow crystal clear and unambiguous legal precedent and perform the entirely ministerial duty of granting the government’s motion to dismiss the charges against Flynn.
After pleading guilty to making false statements to the FBI but before sentencing, Gen. Flynn moved to withdraw his plea, alleging that the prosecution had failed to produce exculpatory evidence and breached the terms of the plea agreement. Months later, the U.S. Attorney for the District of Columbia filed a motion to dismiss all charges pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure, which provides that “The government may, with leave of court, dismiss an indictment, information or complaint.”
In its motion, the government stated that, in light of previously hidden evidence of misconduct by the FBI, the prosecution could no longer prove beyond a reasonable doubt that any statements by Flynn were material to a legitimate investigation and that “continued prosecution of the charged crime does not serve a substantial federal interest.”
But, even though the defense and prosecution agreed that the case must be dismissed, Judge Sullivan did not decide the government’s motion. Instead, he appointed a “friend of the court” to oppose the motion and to address whether Flynn should be held in criminal contempt for allegedly falsely testifying at his guilty plea that he had made false statements to the FBI. Sullivan scheduled hearings on these issues.
Consequently, faced with Judge Sullivan’s egregiously illegal behavior, Powell was forced to petition the District of Columbia Circuit Court for a writ of mandamus requiring Sullivan to follow the law and grant the prosecution’s motion to dismiss the case.
In filings before the circuit court, Sullivan explained that he plans to “question the bona fides of the government’s [dismissal] motion,” “inquire about the government’s motions and representations,” “illuminat[e] the full circumstances surrounding the proposed dismissal,” and probe “whether the presumption of government regularity for prosecutorial decisions is overcome” in “the unusual facts of this case.”
In a 2-1 decision, a panel of the D.C. Circuit Court of Appeals granted the petition and ordered Sullivan to grant the motion to dismiss the criminal charge against Flynn.
Noting that, although Rule 48 requires “leave of court” before dismissing charges, under well-founded legal precedent “decisions to dismiss pending criminal charges — no less than decisions to initiate charges and to identify which charges to bring — lie squarely within the ken of prosecutorial discretion” and that “the principal object” of the “leave of court” requirement is “to protect a defendant against prosecutorial harassment … when the Government moves to dismiss an indictment over the defendant’s objection.”
The court held that Rule 48 “gives no power” to a court to “deny a prosecutor’s … motion to dismiss charges based on a disagreement with the prosecution’s exercise of charging authority.” Consequently, “a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions.” Why? Because, under well-founded legal precedent, “authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of — and without oversight power in — the Judiciary.”
The panel’s split was along political party lines. Judge Neomi Rao, who wrote the majority opinion, was appointed by President Trump. Judge Karen Henderson who joined in that opinion was appointed by President George H. W. Bush, and Judge Robert Wilkins, who dissented, was appointed by President Obama.
Now we have been told by Chief Justice John Roberts that there are no such things as “Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Maybe that’s what it looks like from on high, but I can assure the Chief Justice that, down here in the trenches, the view is altogether different. When a case is assigned to any given federal judge, us lowly grunt trial lawyers want to know which president appointed the judge. Why? Because that’s a fairly reliable indicator of the assigned judge’s legal philosophy and predisposition. The panel split in the Flynn case provides further support for that reasoning.
So now the ball is in Judge Sullivan’s court. Will he comply with the mandamus writ and grant the motion to dismiss? Or will he seek a rehearing en banc by all 12 active (as opposed to senior) D.C. Circuit judges in the hope of having the panel decision reversed and the mandamus lifted?
For now, Judge Sullivan has entered a so-called “minute order” staying the hearing on the motion. This indicates that he is not yet willing to dismiss the Flynn prosecution.
In the ordinary course of events, circuit courts rarely grant motions for rehearing en banc. But then neither the frame-up of Gen. Flynn by the Obama-era FBI nor Sullivan’s handling of the resulting prosecution has been ordinary. The Flynn case has always been a highly charged political litmus test regarding the legitimacy of the Trump administration. And throughout the proceedings in the case, there have been warning signs that Judge Sullivan may not be playing with a full deck. In open court and on the record, he ranted about Flynn, a decorated 33-year Army combat veteran, being a foreign agent who sold out his country. The charge, mind you, is lying to an FBI agent. But Sullivan seemed to think he was presiding over the Aaron Burr treason case. Then, after a brief recess during which someone must have brought him up to speed on the facts, he came out on the bench and half-heartedly backtracked his unhinged tirade.
And, when Sidney Powell took over Flynn’s representation, Sullivan accused her of some kind of purportedly unethical and previously unknown crypto-plagiarism because she had not, in his estimation, properly attributed the source of the legal precedents cited in her pleadings. I’ll give it to Sullivan. That was a first in my book since every legal filing I’ve ever seen used case citations indistinguishable in format from those used by Powell.
So, what’s the chance that Sullivan will seek a rehearing en banc? Seven of the 12 circuit court judges were appointed by Democrat presidents. Combine those favorable odds with Sullivan’s demonstrated hostility to Flynn, his grandiose concept of his judicial powers, his undoubted humiliation at being subjected to a writ of mandamus for committing, in the words of the panel, “clear legal error,” and the answer begins to come into focus.
Given those factors, why wouldn’t Judge Sullivan seek a rehearing before the full circuit court? And, even if he should fail in that regard, why wouldn’t he then take his cause to the U.S. Supreme Court? It’s a no-lose situation for him. Given the political composition of the D.C. Circuit, he may win. But, even if he doesn’t, by pursuing the litigation he will continue to provide ammunition to the anti-Trump forces that pervade the D.C. swamp and, at the very least, gain a permanent open invitation to all the right Georgetown cocktail parties.
I hope I’m wrong. But five decades of closely observing pampered, egocentric federal judges tells me that I’m not.
George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net and may be reached by email at email@example.com.