However, Luttig argues in his op-ed that the appeals court should step in to replace the advisory counsel that Sullivan selected to argue against the motion to dismiss, block the receipt of briefs from friends of the court (including one in which I participated), and name a new trial court judge to oversee the case. With due respect, he is wrong on all counts.
It’s not uncommon for a court to appoint an outside lawyer to argue a case in lieu of the government when circumstances call for that approach. But Luttig objects to the particular counsel that the judge in the Flynn case has selected. He argues that that attorney, John Gleeson, another respected former federal judge, should be disqualified because he is biased, having argued in an opinion piece that the motion to dismiss should be denied. But this opposition misconstrues the role that he should play.
However “biased” he might be in opposing the motion to dismiss, is he any less biased than whatever lawyer the Justice Department will send to argue in favor of ending the prosecution? Indeed, rephrase that so-called bias as “zealous advocacy,” something that the legal profession’s code of professional responsibility requires of counsel. That sets the stage for the kind of adversarial proceeding that our common-law tradition has established as the best way to determine the truth. So the appeals court should leave Gleeson in place. He is well qualified, and anyone selected to replace him ought to play exactly the same role.
As to the receipt of friend-of-the-court briefs (also known as amici curiae), what, exactly, is wrong with a court entrusted with determining what is in the public interest actually hearing from the public? Several groups composed of respected citizens on the right and left are seeking permission to be heard; they and other informed and interested persons ought to be allowed to speak. The court will be free to accept or reject whatever its amici suggest, just as it would the input of private citizens with respect to matters of sentencing, as is commonplace.
Some critics also suggest that there is no federal criminal rule authorizing amici curiae. However, there is no rule prohibiting them either, and the local civil rules that govern all proceedings in this district clearly allow the participation of amici. While amici might be rare in criminal cases, having outside parties weigh in is clearly appropriate in this novel situation, where the Justice Department is seeking to block a case in which its role is effectively complete and the defendant has entered a guilty plea.
Finally, Luttig suggests that the appeals court remove Sullivan from overseeing the case, citing “ample grounds in the actions the district court has taken for the appeals court to order that the government’s motion to dismiss be heard by a different judge.”
This would be unwarranted, unfair and an inefficient use of judicial resources. Sullivan has overseen the Flynn case, has accepted his guilty plea and is well-versed in the facts. He has done nothing improper in dealing with the extraordinary move by the government, at the 11th hour, to abandon its own case. He is an independent thinker who has stood up to the Justice Department before, most notably in using an outside counsel to uncover the tarnished prosecution of the late Sen. Ted Stevens (R-Alaska.) In this situation, that is an asset, not a demerit.
Sullivan’s concern about the gravity and complexity of the issue before him is understandable, as is his effort to establish mechanisms to help ensure that he has the benefit of a competing view now that the government has aligned itself with the defense’s effort to end the case. The D.C. Circuit should let him proceed.