There are thousands, maybe millions, of exceptional examples of the criminal legal system gone wrong. So it’s rather astounding that Michael Flynn has become the poster boy for “injustice.” But that’s just where the stupid starts, as every blithering idiot on one team goes bonkers on the other tribe’s blithering idiots. In an odd sense, that might be an entirely acceptable state of affairs, let the two teams of crazies rumble and let nature take its course.
But when the legal system, the Least Dangerous Branch, becomes the whipping boy of the warring tribes, another issue arises. This extreme outlier of a case gives rise to more extreme and outlier views, and these views distort the legal system, which isn’t robust enough these days to weather the crazy. This became clear to me when the latest in this series of exceptional events happened: Judge Emmet Sullivan retained counsel to respond to the District of Columbia Circuit Court’s order directing him to respond to the petition for a writ of mandamus by Flynn’s lawyer, Sidney Powell.
None of this is “normal.” Even within the realm of abnormal, however, things are getting further away from normal and heading into the realm of seriously crazy.
Judge Sullivan’s refusal to accept the government’s motion to dismiss, post guilty plea and motions, is unusual. His appointment of John Gleeson as amicus is unusual. A writ of mandamus is unusual. But in the scheme of unusual, this isn’t outside the norm of unusual, if that makes sense. Whether Powell seek mandamus is a wise tactical choice is a separate matter, as it assumes that Judge Sullivan, and former Judge Gleeson, will not take the position that the plea should be vacated and charges dismissed. It suggests Powell fears what a little digging will reveal, and that she’s willing to prolong her client’s pain. After all, if the worst for Flynn happens, she would still be able to appeal the ruling.
But the circuit didn’t invite Judge Sullivan to respond to the petition. It ordered him to do so. Circuit courts ordering district judges to respond isn’t in the norm of unusual. What would they do if Judge Sullivan declined to respond? “Hey, you guys decided whatever you choose and I’ll follow your ruling because you are a superior court. Have a great day.”
If Judge Sullivan asked my advice, which he didn’t, I would have urged him to retain counsel to respond in compliance with the circuit’s order. It’s unseemly for a district judge to become personally embroiled in litigation in this way, but far more important is that it gives rise to the very real appearance of partiality. It puts Judge Sullivan in the awkward posture of arguing for positions, for issues, for an outcome, that he must necessarily not take until he reaches a decision.*
When judges are the target of mandamus, they are ordinarily represented by the government, be it the Department of Justice or a state attorney general. Under the circumstances here, that isn’t possible, since the DoJ is part of the issue being addressed by the appointment of Gleeson as amicus. That means Judge Sullivan is left to his own devices. He could represent himself, awkward as that may be, or lawyer up.
There are instances where judges have chosen to fly solo. Maybe that’s because they didn’t feel it would present a compromise of their neutrality under the particular circumstances or given the nature of an issue. Maybe they had a fool for a client. Beats me. But that Judge Sullivan chose to retain Beth Wilkinson to represent him is entirely normal under these very unusual circumstances.
But here’s where it gets even worse: the right is manufacturing a controversy out of Judge Sullivan’s lawyering up with Wilkinson. Are there not enough real issues here, bizarrely outside the norm, to fight about here without making the decision to avoid the awkward, the potentially compromising, the order that puts a district court judge into the posture of an advocate against a defendant, without making an entirely normal thing like being represented by a lawyer in such an abnormal situation an issue?
Between the crazies on the right and left, there is little that happens in the legal system that can’t be spun into some tin foil hat conspiracy. With it goes the only weapon in the least dangerous branch’s arsenal, the belief in the integrity of the system. Granted, there may be good reason for this, and judges haven’t helped matters, but without a viable legal system, we’re in the (virtual) streets doing trial by combat or dunking witches in pools. If you think society sucks with the legal system, you’re going to really hate it without one.
The irony here is that there has been no decision as yet by Judge Sullivan. John Gleeson hasn’t offered any view as to the impact of the government’s dismissal motion on the integrity of the court’s processes. The circuit has yet to grant or deny mandamus, and Michael Flynn isn’t being warehoused in SHU. Yet here the right is ready to blow the top off the system, to the extent the left hasn’t already done so, as if everybody knows what the courts will do in the future. Except me.
There is nothing controversial about Judge Sullivan retaining Beth Wilkinson to represent him before the circuit. There is nothing controversial about what Judge Sullivan eats for breakfast. It’s bad enough that the useful idiots believe the validity of the legal system hinges on the most outlier of defendants possible, but there is nothing outrageous about Judge Sullivan lawyering up. Find another cause for your tin foil hat.
*By appointing Gleeson as amicus, Judge Sullivan sought a neutral to ascertain whether there are legitimate countervailing arguments that were not being presented. There is nothing to suggest that Gleeson won’t respond with “the government’s motion is completely appropriate and substantively sound.”