When the Department of Justice decided to drop the case against former national security advisor Michael Flynn, the case, for all intent and purposes, should have been dismissed by the presiding judge. Unfortunately, rather than dismissing the case, federal district judge Emmet Sullivan issued an order inviting third party groups to file amicus briefs regarding the Department’s decision to drop the case. The judge’s decision was ultimately overturned by a three-judge appeals court panel. Again, rather than simply dismissing the case, Judge Sullivan filed a petition for rehearing for an en banc review by the full court for the U.S. Court of Appeals for the D.C. Circuit, agreed to hear oral arguments on August 11, 2020. Initially, the court agreed to hear arguments regarding the writ of mandamus. However, on August 5, 2020, the court entered another order directing the parties to be ready to address the applicability of several statutory provisions relating to the issue of judicial impartiality. Given the court’s recent order and Judge Sullivan’s role/conduct in Flynn’s case to date, there is a strong argument that he should be removed/disqualified from this case.
According to 28 U.S. Code §455:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a Party.
The language of this statue is clear and compels a judge to disqualify him/herself under certain circumstances. More particularly, subsection (a) compels disqualification when the judge’s impartiality might reasonably be questioned. While this does not require certainty, it will likely require a detailed and fact-specific analysis by the court as to whether the judge’s conduct, etc. made it reasonable to question his impartiality in Flynn’s case. Various Circuits have interpreted this provision differently. For example, some, but not all, Circuits have held that close questions should be decided in favor of disqualification.
Subsection (b) of the statute is much clearer and compels disqualification if the judge is a party to the proceeding. According to Section (d), the term “proceeding” includes pretrial, trial, appellate review, or other stages of litigation.
In light of this language, there is a question as to whether Judge Sullivan made himself a “party” to the lawsuit when he filed the Petition for Rehearing. In other words, by filing the petition, Flynn’s counsel could very well argue that Judge Sullivan injected himself into the case as a party, thereby cementing his immediate disqualification in Flynn’s case. As a matter of fact, Judge Sullivan also appears to be named as a “party” in the court’s recent Order and is allotted 20 minutes to present oral arguments. Therefore, if judge Sullivan is deemed to be a party, disqualification is mandatary pursuant to (b)(5)(i).
The court’s August 5, 2020 order added a new wrinkle to this already convoluted case. By ordering the parties to address the issue of judicial impartiality and disqualification, the court could rule on the issue of mandamus and/or also decide that Judge Sullivan should be removed from the case because he is a party to the proceeding and/or because his partiality can reasonably be questioned.
Hopefully, the court issues its ruling in relatively quick fashion. Until then, Michael Flynn’s freedom continues to hang in the balance.
This article is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. You should not take, or refrain from taking, any legal action based upon the information contained in this article without first seeking professional counsel.
Mr. Hakim is a writer, commentator, and a practicing attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Epoch Times, The Western Journal, American Thinker, Conservative Daily News, and other online publications.
Twitter: @ThoughtfulGOP; Facebook: @ThougtfullyConservative
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