Does the rule of law still prevail in the federal courts in the nation’s capital?
Or, does what is done there turn on the party affiliation of the judge deciding the case?
The strange case of Lt. Gen. Michael Flynn strongly suggests that politics is as important as legal precedent in predicting judicial behavior.
In a rare judicial decision overruling a panel consisting of two Republican and one Democratic judges, the en banc ("full court") District of Columbia circuit court of appeals, which included 10 judges (seven Democrat-appointed and three Republican-appointed) ruled 8-2 against Flynn.
The two dissenters in the case, Judges Naomi Rao (a Trump appointee) and Karen Henderson (a George H.W. Bush appointee), were the two judges whose decision was overturned.
The most interesting opinion was a concurring one by the George W. Bush appointee, Thomas Griffith, who wrote expressly to indicate his belief that it would be a mistake to understand the full court’s decision as "an exercise of raw political power" with "the party affiliation of the president who appoints a judge becom[ing] an explanation for the judge’s real reason for the disposition."
Still, it seems more than a coincidence that so many Democrats ruled against a Republican defendant in a highly visible and very politically-tinged case.
Gen. Flynn was a man who had expressly criticized the foreign policy of President Obama (even though he served in the Obama administration), and one might be forgiven for seeing the original case as a vendetta brought by partisans against Gen. Flynn.
One could also be rightly disturbed by the conduct of the trial judge in the case.
Emmet Sullivan, in open court, speculated that Gen. Flynn could have been charged with treason and betrayed his country, even though treason was never the case brought against him (he had pled guilty to a charge of lying to the FBI about contacts he had with the Russian ambassador).
Further, Sullivan had taken the unusual step, when the prosecution decided to drop the case, of declining routinely to dismiss it, and instead appointing a retired federal judge (who had written a partisan op-ed arguing that the case should not be dismissed) to appear in court to argue against the prosecution’s decision.
As I have written here before, Sullivan had wrongly arrogated to himself the roles of prosecutor, judge, and jury, so that he had actually lost his judicial objectivity and had become a party to the case.
The court of appeals should have either acquiesced in the panel decision, or should have assigned the case to another, unbiased, trial judge for resolution.
Judge Griffith’s view was different, as he indicated that what was involved was not politics, but the simple procedural question of whether the panel granting the Flynn dismissal had acted too soon, before Judge Sullivan actually had a chance to issue a decision granting or denying dismissal.
Ignoring the irregularities in Judge Sullivan’s conduct, Judge Griffith even went so far as to state his opinion that it would be "highly unusual" if Sullivan did not eventually rule in Flynn’s favor, and grant dismissal of his case, since the prosecution had asked for that dismissal and given that the executive branch (of which the prosecution was a part) had the "constitutional prerogative to direct and control prosecutions."
Judge Griffith’s confidence that Judge Sullivan would eventually do the right and required thing, though, boggles the mind considering Sullivan’s conduct thus far in the case.
Still, the same confidence that Judge Sullivan could render an unbiased decision was also clear in the majority’s opinion in the case, which turned on the fact that Sullivan had actually not yet rejected the motion of the prosecution to dismiss the case.
In their opinion the majority claimed that there was no judicial precedent for granting the extraordinary relief requested from the court of appeals, before the district court had actually and finally ruled (even though there was also no prior case in which the district court had virtually labelled the defendant a "traitor," or appointed an avowed critic of the prosecution to argue against dismissal).
The most charitable thing one can say is that the majority and Judge Griffith were seeking to preserve the appearance of the regularity and integrity of judicial proceedings, but their's and Judge Sullivan’s conduct belied that.
Judges Henderson’s and Rao’s blistering dissents laid out all the reasons why Judge Sullivan’s partiality disqualified him from the case, and why extraordinary prosecutorial misconduct justified immediate relief for Gen. Michael Flynn.
Sadly, the full court’s attempt to give Judge Sullivan one more chance is a blatant injustice for Gen. Flynn.
Flynn is likely eventually to prevail, especially if Judge Sullivan takes the hint offered by Judge Griffith, but justice delayed is still justice denied.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. Read Stephen B. Presser's Reports — More Here.
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