The Code of Conduct for U.S. Judges requires judges to perform the duties of office “fairly, impartially and diligently.”
Americans have watched an unseemly spectacle unfold for many months involving a federal judge who has used scarce public resources to engage in what appears to be nothing more than a political vendetta.
That vendetta ended Thursday when President Donald Trump pardoned his former national security advisor, retired three-star Army general Michael T. Flynn, who pleaded guilty to making false statements to the FBI but then recanted.
Evidence emerged that high-ranking FBI officials, holdovers from the Obama administration, had orchestrated an ambush of Flynn to trap him into making statements that they could allege to be false.
After Attorney General William Barr ordered a review of Flynn’s case by a federal prosecutor, the Department of Justice in May sought to drop the charges against Flynn. The government said the evidence of FBI misconduct meant Flynn’s statements were not material to a legitimate investigation, which was an essential element of a false-statements offense.
That should have been the end of it. The prosecutor is uniquely capable of determining whether it can prosecute a criminal defendant. But it wasn’t .
U.S. District Judge Emmet G. Sullivan of the District of Columbia refused to dismiss Flynn’s case.
In an unorthodox move, Sullivan appointed a retired federal judge to argue contrary to the DOJ’s position that Flynn should proceed with sentencing on his guilty plea. (Nevermind that the retired judge earlier penned an op-ed piece In the Washington Post stating the dismissal of Flynn’s case “reeks of improper political influence.”)
Meanwhile, Sullivan threatened Flynn with jail time even though the government had not recommended prison time and made frightening comments (i.e., “I’m not hiding my disgust, my disdain for this criminal offense.”)
Flynn petitioned the U.S. Court of Appeals for the D.C. Circuit to order Sullivan to grant the DOJ’s unopposed motion to dismiss the charges against Flynn. In a 2-1 decision on June 24 , the majority concluded:
- Clearly established legal principles assign the executive branch responsibility over prosecutorial charging decisions.
- A district court has no power to deny a prosecutor’s motion to dismiss a charge barring an extraordinary showing of harassment of the defendant or malfeasance, such as bribery – neither of which is relevant here.
- Sullivan’s appointment of a retired judge to scrutinize the reasoning and motives of the DOJ “constitute irreparable harms that cannot be remedied on appeal.”
- “The government’s motion includes an extensive discussion of newly discovered evidence casting Flynn’s guilt into doubt.”
The panel ordered Sullivan to grant the government’s motion to dismiss. But Sullivan didn’t do that. On July 9, he retained (who paid?) a powerful D.C. law firm to submit a 30-page petition on his behalf requesting a rehearing by the all of the 11 judges on the D.C. circuit.
Meanwhile, Flynn was required to report weekly to probation; his passport remained confiscated and he was racking up attorney fees, all the while suffering stress and “continuing ignominy.”
Flynn’s attorneys filed an emergency motion asking the 11th Circuit to intercede. On August 31 the full circuit in an 8-2 ruling refused, noting Sullivan could yet dismiss Flynn’s case. The majority were Democrats while the dissenters were Republican.
There were yet more arguments at the end of September, as well as a furious gusher of briefings and pleadings.
But Flynn was still twisting in the wind.
In announcing the pardon, Trump said: “It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon. Congratulations to @GenFlynn and his wonderful family, I know you will now have a truly fantastic Thanksgiving!” Undoubtedly, Flynn would have preferred to have his case dismissed but Trump’s term appears to be ending and there was no sign the same was true for his case.
Americans can also be thankful – that they are no longer subsidizing a petty grudge-match and useless court proceedings to nowhere.