Former federal appellate Judge J. Michael Luttig makes some excellent points regarding Judge Emmet Sullivan’s erratic performance in the Flynn case, writing in the Washington Post. I respectfully disagree with him, though, that the D.C. Circuit Court of Appeals should, at this stage, find Sullivan has demonstrated such bias that the case should be reassigned to a different judge.
That would deprive Sullivan of the opportunity to explain himself, while needlessly extending the proceedings, further prejudicing Michael Flynn.
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While Luttig is understandably worried about the public reputation of the court, the constitutional priority here is Flynn’s due-process rights. If, as I expect, Sullivan cannot defend his recent actions, the D.C. Circuit should either directly grant the Justice Department’s motion to dismiss, or order the lower court to grant it.
The Court of Appeals’ order gave Sullivan 10 days to respond to Flynn’s mandamus petition. That is prudent. Sullivan is a highly experienced judge. John Gleeson, the former judge and prosecutor whom Sullivan wants to bring in as his adviser, is also well versed in criminal law. To my mind, they have both been swept away by the heated politics of the moment.
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Sullivan, in addition, is clearly livid about putting in what may be wasted effort on the case, and no doubt feels ill-used by Flynn’s reversal of course — which happened only after Sullivan elicited from Flynn reaffirmations that he was guilty and was not seeking to withdraw his plea.
The 10 days give Sullivan an opportunity to count to 10 and do his duty. No one is suggesting that he needs to agree with or approve of the Justice Department’s decision to dismiss the case. He must, however, accept that this is the Justice Department’s call to make.
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Sometimes, the shoe is on the other foot: A judge will exercise his or her discretion in a way prosecutors believe is profoundly wrong but that is not effectively reviewable.
Our justice system is rightly the envy of the world, but it relies on discretion in many instances; within wide bounds, discretion is the authority to make decisions with which reasonable minds disagree — often passionately.
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