A divided three-judge panel in late June ordered Sullivan to close the case and said he was wrong to appoint a retired federal judge to argue against the government’s position and schedule a hearing. But the full court, sitting Tuesday with 10 judges, agreed to take a second look at the unusual case that tests the power of the judiciary to check the executive branch.
Judge Cornelia T.L. Pillard said Sullivan did not appoint the former judge to decide the case, but to represent one side in an adversarial system that is designed to ensure courts “get the law right.”
Sullivan did so after prosecutors asked the judge to reverse his acceptance of Flynn’s sworn guilty plea.
“The integrity and independence of the court is also at play here,” Pillard told acting solicitor general Jeffrey B. Wall, who represented the government.
“What self-respecting judge would jump and enter an order without doing what he could do to understand both sides?”
Judge Thomas B. Griffith also disagreed with Flynn’s lawyer Sidney Powell that a trial judge’s role in considering a dismissal motion is merely “ministerial.”
“That means the judge has to do some thinking about it. The judge is not simply a rubber stamp,” Griffith said during the nearly four-hour argument carried via live stream because of the coronavirus pandemic.
One reason federal rules require prosecutors to get permission — or “leave of court” — from a judge to dismiss charges, Griffith said, is to allow the judge “to examine favoritism for politically powerful defendants.”
But Powell argued that the presiding judge has no discretion when the government quits a case. Sullivan’s refusal to go along, she said, indicates “his bias demands his disqualification.”
“When the government signs off, the case is over,” Powell said. “Judge Sullivan went through the guardrails” by appointing retired judge John Gleeson to argue against Justice Department. She said “he has to be reined back in.”
Griffith also had tough questions for Sullivan’s lawyer, Beth Wilkinson, and asked her to respond to criticism of Gleeson’s appointment. The retired federal judge called the Justice Department’s attempt to undo the conviction politically motivated and “gross abuse of prosecutorial power.”
Wilkinson urged the court to allow Sullivan’s examination to proceed and said the law allows for a narrowly focused hearing.
“Speculation and fear about what a district court might do are not a proper basis” to grant Flynn’s request to shut it down before Sullivan has ruled, Wilkinson said.
“Nowhere has the trial judge said he’s going to collect evidence or require affidavits,” Wilkinson said. “He has not suggested anything other than lawyers will argue motions, there would be follow-up questions and there would be a decision made.”
The most pointed questions for Sullivan’s lawyer came from Judge Neomi Rao, who previously sided with Flynn in the initial panel decision. Rao pressed Wilkinson about Sullivan’s request for reconsideration by the full court and disputed that Sullivan’s planned review is “just a hearing.”
“Why continue to scrutinize dismissal?” Rao asked. “Does that make him a party to the case? What precisely is the judge’s interest?”
The D.C. Circuit ordered Sullivan to respond to Flynn’s petition, Wilkinson responded, and the judge’s interest in argument before the full court is “meant to protect the process.”
In May, Sullivan refused to go along with the government’s request to drop charges against Flynn, who twice pleaded guilty to lying to federal agents about his contacts with Russia’s ambassador in Washington . Instead, Sullivan appointed Gleeson to oppose the Justice Department’s request.
In response, Flynn’s attorneys made the unusual move to petition the D.C. Circuit to intervene midstream and force the judge to toss Flynn’s case. Sullivan defended his position that the court has authority to investigate whether dismissing the case is in the public interest, and hired Wilkinson, a politically experienced trial lawyer to argue his reasons.
Because Sullivan was ordered to answer Flynn’s initial petition, and could not be represented by the Justice Department that is now aligned with Flynn, the Administrative Office of the U.S. Courts is paying Sullivan’s legal fees as prescribed by statute.
During argument Tuesday, Rao also raised Flynn’s concerns about leaving the case in Sullivan’s hands.
Wall, the acting solicitor general, agreed with Flynn’s defense that it may be appropriate to reassign the case. Sullivan’s actions, Wall said, suggest a “problematic” degree of investment in the case, and he should not be allowed to prolong a harmful, unnecessary and “intrusive inquiry” into the Justice Department’s motivations.
“We have reluctantly come to the view that there is now at least a question about the appearance of impartiality,” Wall said.
Even so, Wall put forward an alternative if the appeals court disagrees with the government’s position and denies Flynn’s request. He urged the court to reiterate and limit Sullivan’s role, to make clear that the parties are not required to submit evidence and require a quick decision so that the retired general and the Justice Department can return to the D.C. Circuit.
Flynn was the highest-level Trump adviser convicted in special counsel Robert S. Mueller III’s Russia investigation. Instead of proceeding to sentencing, Attorney General William P. Barr ordered a review of the Flynn investigation. He then moved to drop the long-running case, saying new evidence showed FBI agents did not have a valid reason to question Flynn, so any lies he told did not amount to a crime.
In its 2-to-1 decision in June, the D.C. Circuit panel said it is not within a judge’s power to prolong a prosecution or examine the government’s motives for moving to drop criminal charges.
“This is not the unusual case where a more searching inquiry is justified,” wrote Rao, a recent Trump nominee, who was joined by Judge Karen LeCraft Henderson, a nominee of President George H.W. Bush.
Judge Robert L. Wilkins, a nominee of President Barack Obama, disagreed. Sullivan “must be given a reasonable opportunity to consider and hold a hearing on the Government’s request to ensure that it is not clearly contrary to the public interest.”
Rachel Weiner contributed to this report