As the nation’s attention has been righteously and rightfully focused on police brutality in the wake of the murder of George Floyd, a second national drama over law enforcement has been playing out in court in Washington. Last week, Judge Emmet Sullivan responded to an order from a three-judge panel of the D.C. Circuit Court of Appeals to explain his decision to request briefing over the Department of Justice’s unprecedented and outrage-inducing attempt to drop the charge against Donald Trump ally and former national security adviser Michael Flynn after he pleaded guilty to lying to the FBI. While the outcome of Sullivan’s case may not have the implications of the current debate over excessive police force, it demonstrates a different but critical threat to equal justice of the law. Based on last week’s filing, though, Sullivan presented the weakest possible legal case for his correct and appropriate actions to curb the DOJ’s apparent political protection of Trump and his cronies.
Sullivan recently appointed a retired judge to argue against the government’s motion. As a practical matter, the circuit judges have asked Sullivan why the case needs to proceed under his requested briefing schedule. Or more pointedly: What else does he need to know before granting the DOJ’s motion to dismiss the Flynn charges?
Sullivan’s response to the three-judge panel failed to offer a persuasive answer to that question. The filing focused on legal questions raised by the government’s motion—for instance, whether Sullivan can consider the “public interest” in ruling on it—but to an appeals court that may be interested in cutting the proceedings short, that is not a particularly compelling reason to let the case continue. Appeals courts specialize in legal issues—fact-gathering is the province of trial courts—so if at least two of the circuit judges want to stop Sullivan, all they need to do now is outline whatever they claim are the relevant legal considerations and argue that the facts proffered by the government are sufficient. The exercise is made easier by the fact that the relevant law is sparse and is sufficiently indeterminate that outcome-oriented judges could easily write an opinion reaching their desired result.
The better reason to reject Flynn’s and the DOJ’s request—but one that got virtually no attention in Sullivan’s brief—is that there are factual questions that need to be explored before any dismissal can be granted. These might include whether the government’s investigation at the time of Flynn’s FBI interview was (as the government now claims) improperly predicated, whether there was in fact any prosecutorial misconduct during the case, whether it is true that the government threatened to indict Flynn’s son if he did not plead guilty, whether Flynn actually told his prior lawyers that he did not believe he had lied to the FBI, and what considerations actually drove the government to reverse course.
Instead, Sullivan’s lawyers virtually conceded that the factual record was complete. They noted in passing that Sullivan has the authority to “conduct investigations as necessary,” but they did not say what an “investigation” here might look like. They also suggested that Sullivan may want to question Flynn, in part to “assess his credibility,” but Flynn may invoke his Fifth Amendment right against self-incrimination, considering that Sullivan raised the possibility that Flynn may face criminal exposure for lying in court.
The government officials involved in the Flynn investigation may similarly be reluctant to provide open-ended testimony given the ongoing probe by John Durham, which makes it important to precisely define the areas of possible inquiry. By contrast, the Justice Department’s decision to seek the dismissal of Flynn’s case should be fair game for scrutiny and testimony by the relevant officials—particularly because by offering an account of the decision-making process in its brief to Sullivan, the government both conceded its relevance and waived any legal protections that might have protected those deliberations.
The failure to explore any of this is curious, to say the least. It could have been motivated by a desire to avoid giving the circuit judges a target to shoot at, but the risk of being silent on the matter is greater.
It may also have something to do with Sullivan’s choice of lawyer. Sullivan is being represented by Beth Wilkinson, a well-connected Washington lawyer best known for representing Supreme Court Justice Brett Kavanaugh during his confirmation after Christine Blasey Ford alleged that he had sexually assaulted her. (Disclosure: I once worked at the same law firm as Wilkinson.) Wilkinson was a key figure in the public campaign to discredit Ford—for instance, slyly but repeatedly questioning what took Ford so long to come forward—and during her media appearances, she introduced some of the many lies offered by Kavanaugh in his defense.
As a result, any decent federal judge should have thought twice before enlisting Wilkinson, but she may have been selected by Sullivan precisely for this reason—not because of her expertise, but because her work on behalf of Kavanaugh makes it difficult for Flynn’s conservative supporters to criticize her.
Ultimately, Wilkinson’s past representation of then Judge Kavanaugh wouldn’t matter if she had done a better job of representing current Judge Sullivan. Sullivan’s lawyers missed the opportunity to position Sullivan as an institutionalist guarding the prerogatives of the judicial branch and performing his part to promote the rule of law—the collection of principles that includes the proposition that the law should operate neutrally and without favoring people based on their social status or political connections. This is the most important political value at stake in the Flynn proceeding, and it is a crucial part of the apolitical project that, as one prominent legal philosopher has put it, seeks to make power “less arbitrary, more predictable, more impersonal, less peremptory, less coercive even.” In the American constitutional order, this entails an interlocking set of commitments and responsibilities among all three branches, and this idea is at the heart of what people mean when they say Sullivan should not be a “rubber stamp” for DOJ actions that can only be explained right now by sheer political influence.
Judges cannot guarantee the rule of law, but they have a responsibility to their fellow Americans to try. This was Sullivan’s first opportunity to introduce and defend this vital concept himself. Unfortunately, it was a missed one.