Highly Recommended: Why Sullivan MUST Disqualify Himself From The Flynn Case

I wish I could simply paste in the entire article by Leslie McAdoo Gordon:

Here’s Why Judge Sullivan Must Disqualify Himself From Michael Flynn’s Case

Sullivan’s apparent animus toward Flynn's attorney and his fixation on Flynn being punished demonstrate bias in this case — sufficient to require his disqualification.

It's really well reasoned and expressed. As the subtitle indicates, the author focuses on two primary issues. 

First, Sullivan has exhibited extreme and improper bias against Flynn's attorney, Sidney Powell. McAdoo Gordon begins this section by pointing out disparities in Sullivan's treatment of Powell, as compared to the other attorneys involved--a manifest lack of respect. But she then moves on to an even more serious issue demonstrating Sullivan's animus against Powell--his unfounded and, really, rather unhinged attempt to paint Powell as in some way unethical. I say unhinged because this attempt follows a pattern of conduct by Sullivan--beginning with his accusation of "treason" leveled against Flynn, that appear to demonstrate appalling ignorance of basic matters both of law as well as of legal ethics. That, to me, is most easily explained not by ignorance per se but by an animus that is so consuming as to lead Sullivan to make grossly unfounded accusations in open court:

... during the hearing, Sullivan improperly accused Powell of unethical conduct. He said she acted unethically in writing a letter to Attorney General William Barr asking for a review of Flynn’s case before she had entered her appearance in court as Flynn’s attorney. Sullivan not only confronted Powell about this, but he asked government counsel to comment on whether it was ethical and threatened to file a complaint with attorney disciplinary authorities about it.

First, nothing about Powell’s conduct was wrong. It is not unethical for a defense counsel to ask a senior official to review a case; lawyers do this all the time. It is entirely proper to seek review on the merits by officials empowered to overrule or alter the decisions of subordinate personnel. Powell’s letter is 100 percent ethical behavior.

Second, nor was it unethical for Powell to write the letter before entering her appearance as Flynn’s attorney in the pending court case. There is no requirement that an attorney must enter an appearance in court before acting as counsel for a defendant outside of court, even if the attorney’s actions relate to the court proceeding. Clients are entitled to engage as many lawyers as they please — some for court, others for outside-of-court assistance, others perhaps to negotiate a plea or settlement. This is routine and completely ethical.

Third, Sullivan’s fixation at the hearing on whether Powell’s letter was ethical clearly demonstrates bias against her because that issue had absolutely nothing to do with the DOJ motion to dismiss. ...

Secondly, McAdoo Gordon demonstrates that Sullivan clearly is focused on attempting to ensure that Flynn is punished--no matter what. Call it the "dog with a bone" syndrome--he won't let go and has continuing seeking legal mechanisms to allow him to continue gnawing on this particular bone. McAdoo Gordon breaks this issue down into two points. First, just as with Sullivan's much earlier, and totally unhinged, effort to accuse Flynn of "treason"--Constitution be damned--Sullivan has also attempted to accuse Flynn of "perjury". For maintaining his innocence:

When Sullivan appointed an amicus to advise him about whether to grant the DOJ’s motion to dismiss, he also directed the amicus to give advice as to whether he should issue a show-cause order to hold Flynn in criminal contempt for perjury because Flynn had disavowed his guilty plea.

This second request was extraordinary. First, it displayed ignorance of the law; the Supreme Court decided 100 years ago that perjury does not constitute contempt of court. Second, and significantly for disqualification purposes, trial judges never seek to punish a defendant for filing a motion to withdraw a guilty plea.

Patently, Sullivan's animus and bias against not only Flynn's attorney but against Flynn personally is such that he is openly seeking to evade the requirements of long settled Supreme Court precedents. Yes, that's "extraordinary."

The second point under this general heading is one that I have focused on previously--Sullivan's urge to somehow do an end run on DoJ's motion to dismiss and maintain the Flynn case in a sort of legal limbo, awaiting the right political moment when charges could be reinstated against Flynn. McAdoo Gordon explains:

... Although DOJ has moved to dismiss the case against Flynn “with prejudice,” meaning Flynn could not be prosecuted again, Sullivan asked whether he can instead dismiss without prejudice, noting that a new administration at DOJ might decide to pursue the case. Similarly, Sullivan inquired into whether Flynn could still be charged for violating the Foreign Agents Registration Act — to which Flynn did not plead but which was included as additional “relevant conduct” for purposes of his plea — if he dismisses the current case.

It might be argued that Sullivan was “just asking” these questions and that posing questions does not necessarily demonstrate bias. The clear import of these lines of questions, however, was not an academic inquiry but to determine if there is still a path for punishing Flynn even if the current case has to be dismissed.

Moreover, judges simply do not pose these questions when the government moves to dismiss a criminal case because it is none of their concern under the separation-of-powers principles. The only reasonable conclusion to draw from Sullivan’s “inquiries” is that he is far too interested in determining if there’s “some way, any way” that Flynn can still be punished for something.

McAdoo Gordon's conclusion is that this case is far from over. My suspicion, however, is that post-election, there could be a major smackdown of Sullivan in the offing:

... Sullivan need not rule on disqualification if he simply grants the DOJ’s pending motion to dismiss the case with prejudice. While normally a motion to disqualify should be resolved before any other substantive matter, clearly an order to dismiss the case with prejudice would be entirely in Flynn’s favor and thus not realistically subject to a claim of improper bias. That is not the outcome we will probably see.

If Sullivan denies the motion to disqualify, Powell will likely file a second request for a writ of mandamus and ask the court of appeals to disqualify him. The saga is probably far from finished.

I suspect that not only will Powell aggressively pursue all options, but that DoJ will also adopt an even more aggressive stance than they have to this point, in light of Sullivan's outrageously provocations. Certainly, Sullivan has also flaunted the DC Circuit's instruction to him to handle the case with "dispatch." The legal establishment may quickly grow tired of this.