Flynn Judge Preparing His Own Defense for U.S. Appeals Court

The federal judge presiding over Michael Flynn’s criminal case has landed in the rarest of positions for a presumed neutral party, ordered to defend himself by Monday from accusations that he overstepped.

Of course, U.S. judges, who enjoy lifetime tenure, are frequently overruled by higher courts. But legal minds are hard-pressed to recall another U.S. judge in a predicament quite like the one that U.S. District Court Judge Emmet Sullivan in Washington finds himself in.

The U.S. Circuit Court of Appeals in Washington suggested on May 21 that Sullivan had trespassed into an area reserved for prosecutors when he decided to review rather than simply accept the Justice Department’s surprise request to withdraw Flynn’s criminal charge and guilty plea.

The judge now has his own lawyer working to provide legal support for his approach by the Monday deadline. That filing is bound to stoke another round of legal analysis, editorials and cable-news commentary over a dramatic power struggle between the executive branch and the judicial branch before the appeals court makes a ruling.

“The shift is now off of Flynn’s established and serious wrongdoing and onto the federal bench, as if Judge Sullivan is the bad guy here. Not so,” Kimberly Wehle, a law professor at the University of Baltimore, said by email. “Sullivan has never been easy on the government. He cares mostly about the rule of law.”

The case, revolving around what Flynn told a Russian official but didn’t tell the FBI, has taken so many surprise turns — from special counsel prosecution to guilty plea to President Donald Trump’s insistence of his innocence — that one could be forgiven for losing track.

Flynn, who was briefly the national security adviser to Trump, wishes to withdraw the plea he entered for lying to federal agents about his conversations with the Russian ambassador. Top Justice Department officials have brushed aside the work of the original prosecutors who worked under the independence of Special Counsel Robert Mueller to secure that conviction and shifted their support to Flynn in recent weeks.

To some legal experts, the fate of the Flynn case comes down to how much leeway a judge should have in looking out for the public interest.

An earlier civil case in which a different judge was rebuffed casts a strong shadow over Sullivan’s predicament. Five years ago, a federal judge in Washington questioned a so-called deferred prosecution agreement struck by the government with a company accused of violating U.S. sanctions against Iran. The appeals court ruled then that prosecutorial decisions were the province of the executive branch, not the judicial.

Citing that case, U.S. vs Fokker Services, the appeals court pressed Sullivan to explain why his decision to review the Flynn matter should be allowed. Sullivan has hired Beth Wilkinson to respond to the appellate court.

Wilkinson has plenty of materials to work with in support of Sullivan, several legal experts said, despite the Fokker ruling.

One is a filing from a group of 16 lawyers who served on the Watergate special prosecution team in the 1970s. They pointed out that Flynn’s guilty plea was given to a special counsel selected to ensure fairness in an investigation involving associates of the president. They also cited parallels to their own investigations of people with political connections to President Richard Nixon.

The former Watergate prosecutors found the Fokker case a bit off point, saying that prosecutors at the time negotiated an agreement with Fokker and then asked the court to finalize it. In that case, the district judge had little reason to question the Justice Department’s decision, the appeals court later ruled.

Late Friday, a group of about two dozen former U.S. district judges submitted a filing in support of Sullivan. “To require a district court to simply dismiss a criminal case, without further inquiry, when the judge believes or suspects that doing so may undermine public confidence in the equal and impartial administration of justice, would be ‘abhorrent’ indeed,” the judges wrote.

Once a defendant is found guilty, the prosecutor’s role is finished and it’s up to the judge to determine what the appropriate sentence should be, said Professor Bruce Green of Fordham Law School.

“At this point, the court doesn’t need the Justice Department to do anything,” said Green, who served as counsel for the office of the special prosecutor in the Iran-Contra investigation in the 1980s.

Flynn hasn’t disputed the facts. He lied not only to the FBI but also to Vice President Mike Pence and Press Secretary Sean Spicer (though the latter weren’t crimes) about the nature of his discussions with the Russian ambassador, conduct that investigators feared would expose him to potential blackmail attempts by the Russians.

The Justice Department has ample case law to buttress its own position in the Flynn matter. As Flynn’s lawyers argued in their petition to the appeals court, the department uncovered new evidence this year raising questions about whether the investigation had been properly “predicated” in January 2017, when Flynn was interviewed by the FBI at the White House.

That evidence grew out of Attorney General Bill Barr’s decision to conduct a review of the FBI’s conduct in the Flynn investigation. Trump and his allies say the investigators abused their power and assert that Flynn is innocent.

The Justice Department had good reason to revisit the original charging decision, and Sullivan is obliged to approve its withdrawal request, Flynn’s lawyers argued.

Flynn’s team referred to an unrelated Supreme Court decision in early May and quoted Justice Ruth Bader Ginsburg. “Courts are essentially passive instruments of government,” she wrote. “They do not, and should not, sally forth each day looking for wrongs to right.”

For some lawyers, the matter centers on whether improper influence was exerted inside the Justice Department. Along with Fokker, an appellate court decision involving Citigroup Inc. could be invoked, suggested John Moscow, who headed complex fraud investigations for the late Manhattan District Attorney Robert Morgenthau.

In that civil case, the government negotiated a settlement with Citgroup Global Markets over its sale of mortgage-backed securities to investors. U.S. District Judge Jed Rakoff in Manhattan refused to accept the settlement, saying that the proposed financial penalty, and the lack of any meaningful admission of guilt by the bank, wasn’t in the public interest.

The appeals court ordered Rakoff to proceed with the settlement. But it said that district judges could refuse to accept a recommendation by the government if they found that it was “tainted by improper collusion or corruption of some kind.”

“The judge has the power to make sure one side or the other is not going into the tank,” said Moscow, who’s now an attorney at Lewis Baach Kaufman Middlemiss.

There’s no formal allegation of corruption in the Justice Department decision to withdraw the charge against Flynn.

Still, the Justice Department under Barr has taken steps to re-examine various cases brought by Mueller’s office, which investigated Russian interference in the 2016 presidential election.

For example, the U.S. attorney’s office in charge of the Roger Stone prosecution changed its tune in February and recommended a shorter sentence. Also, in March, the Justice Department dropped a criminal case against Concord Management, a Russian catering company controlled by Yevgeny Prigozhin, a friend of President Vladimir Putin.

Former Manhattan U.S. Attorney Preet Bharara, a frequent critic of the Trump administration, identified a bigger issue in a recent podcast. Bharara noted that Sullivan had appointed a retired federal judge, John Gleeson, to review the Justice Department’s request and file a report by June 10. In this way, Flynn’s request to a higher panel of judges amounted to “an end-run around the district court,” Bharara said.

If the appeals court rebuffs Sullivan at this point in the process, Bharara said, it would mean that in all instances where a judge “is just making some inquiry and asking some questions,” that judge “can be short circuited.”

“Nothing has happened yet that you can complain about other than, they want to avoid the embarrassment of having the judge make a factual inquiry,” Bharara continued, “that shows that the motion to dismiss the Flynn case is grounded in special treatment and politics and has no good basis. And they don’t want that and they want to avoid that.”

— With assistance by Erik Larson

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