When The Judge Lawyers Up

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.”

17 thoughts on “When The Judge Lawyers Up

  1. Richard Kopf

    SHG,

    I agree that Judge Sullivan’s decision to hire counsel to represent him in preparing a response to the mandamus action should not subject the judge to criticism. But:

    To the extent you imply that Judge Sullivan’s actions in refusing to dismiss the Flynn matter and instead extending consideration of that question ad infinitum, with appointment of former federal judge John Gleason* as a friend of the court, is warranted, I strongly disagree. There is no precedent that I am aware of that justifies such action.

    Judge Sullivan is not the Executive and his intransigence creates serious separation of powers concerns for which I predict the Court of Appeals (or the Supreme Court) will cure, either now or later. Goodness knows that being an Article III district judge permits and perhaps encourages one to be pigheaded. Indeed, I pride myself with being pigheaded. But in order to sustain a pigheaded position one must have some legal basis for doing so. Sullivan has none.

    All the best.

    RGK

    * Given the Op-Ed published by WAPO and written by Gleason and others, I respectfully suggest that your statement –“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’”–is at a minimum debatable and at most palpably silly.

    1. SHG Post author

      Oh ye of so little faith in the wisdom and impartiality of the federal judiciary. My read of Fokker is that it is still incumbent on Judge Sullivan to ascertain whether his prior exercise of authority was legitimate before granting leave to reverse what he’s already ordered, and if no one else is ready, willing and able to present a countervailing position, if one be warranted, then he must do what is necessary to ascertain whether his next exercise of judicial authority is proper.

      Or the judiciary becomes the servant of the executive, and nobody wants that to happen. Or do they?

      1. Richard Kopf

        Fokker: “For the foregoing reasons, we vacate the district court’s order [refusing to exclude the time under the Speedy Trial Act joint request by both parties under a deferred prosecution agreement] and remand for further proceedings consistent with this opinion.” In my view, one must squint hard to read Fokker has authorizing Sullivan’s actions.

        While I have no interest in being the servant of the Executive, I don’t have any interest in playing one either. Know, I would jump at the chance to be King.

        All the best.

        RGK

        1. SHG Post author

          Squinting is an acquired skill.

          The Executive’s primacy in criminal charging decisions is long settled.

          He was charged. He pleaded guilty. His challenge was denied. Expressio unius est exclusio alterius. The Executive took it’s shot and struck its target. It’s primacy was fulfilled.

          1. mds

            not a lawyer….but the fact that jensen turned over ‘exculpatroy’ materials to the court that – in theory – should have been disclosed earlier in accordance with sullivan’s standing ‘brady’ order – and that that the prosecutor had sworn to the court that he had gone ‘above and beyond’ to disclose such materials when (in truth) that was not the case, sort of undermines the declarative ‘he was charged’ and ‘he pleaded guilty’ construction….perhaps ‘res ipsa locquitor’ trumps ‘expression unius est exclusio alterius’…

            1. SHG Post author

              It would be wonderful if that was how undisclosed Brady material worked. It’s not.

              And for the sake of criminal defense lawyers, please avoid using “res ipsa.” It’s a negligence doctrine and makes us cry.

  2. Michael Kelly

    I don’t find anything unusual about Judge Sullivan’s decision to retain Beth Wilkinson. In 2004, my firm represented the federal district court in Montana when the Justice Department objected to a local rule, and we presented the district court’s position to the Ninth Circuit. No one, including the Justice Department, thought it unusual at all. It happens.

    1. SHG Post author

      It’s almost as if a bunch of people who neither knew nor cared about such matters are suddenly reinventing the wheel in their own controversial image.

  3. mds

    i much appreciate your, ah, ‘civil’ response….my comment was based on

    [Ed. Note: Link deleted per rules.]

    but i defer to your experiences) as to how brady actually works….

    and i swear i meant ‘res ipsa…’ as a rhetorical locution as opposed to a legal term of art

    🙂

  4. NF

    This judge has wide powers and may probably question/request almost anything & everything during a court case and may even act as a prosecutor & judge e.g. when judging contempt of court etc.
    He probably erred (slightly) by asking for “instructed biased” amicus support (as though he has already made up his mind) after the prosecution retracted the case –
    He would have probably had a “water tight” case if he asked for amicus support as to why he should accept or reject the dismissal.

    1. SHG Post author

      This being a law blog and all (as in a blog for lawyers and judges), making generic baseless assertions like “this judge has wide powers” is probably not a useful thing to write here, and far more appropriate for reddit where someone might give a shit.

  5. Rick Horowitz

    It’s cute that some lawyers still believe in the rule of law, and norms.

    It has always been about politics. And now, that fact is no longer deniable.

    1. SHG Post author

      Rick, some 12-year-old simpleton is writing stupid shit under your name. I thought you should know.

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