Sidney Powell Demands That Sullivan Recuse From The Flynn Case

As she promised at the last hearing, Sidney Powell has filed a motion today in which she demands that Sullivan recuse himself from any further involvement in the Michael Flynn case:

MOTION TO DISQUALIFY JUDGE EMMET SULLIVAN AND FOR OTHER RELIEF

There's not much point going through the details at this time. We've seen most of Sullivan's antics described before--beginning with his outrageously ignorant claim that Flynn had somehow committed "treason," the only criminal offense that is actually defined in the Constitution:

Section 3.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Even the Team Mueller attorneys were stunned when Sullivan made that incredible assertion in open court.

There is one issue that Powell notes that I do want to draw attention, further down. First, however, to give some idea of the red meant that Powell's motion contains, here is an excerpt from the table of contents:

2. Judge Sullivan’s Prejudicial Statements and Conduct Have Become Increasingly Shrill, Unprecedented, and Prejudicial—and Apparently Influenced by Extra-Judicial Sources

a. His false and defamatory comments at the December 18, 2018 hearing echoed those of Rachel Maddow.

b. Judge Sullivan issued an order inviting anyone to participate as amicus after receiving an email from Robbins Russell firm on behalf of Former Watergate Prosecutors.

c. Judge Sullivan read John Gleeson’s WaPo op-ed and adopted the procedure recommended therein to delay and derail the government’s motion to dismiss.

d. Judge Sullivan’s ex parte involvement of his personal counsel Beth Wilkinson.

e. Judge Sullivan has flouted his own standards of justice by refusing to enforce his Brady order and obstinately ignoring the merit of the shocking new evidence produced by the government.

In discussing these matters Powell pulls no punches at all. It makes for refreshing reading. The picture that emerges is of a federal judge who gets his marching orders for handling a case from watching Rachel Maddow and perusing op-eds. Not a flattering picture, certainly a grossly improper unjudicial one, and illustrated in lurid but accurate prose by Powell. Not to put too fine a point on it, the details read like something out of Alice in Wonderland.

Powell also highlights what was painfully obvious all along--Sullivan's personal "antipathy" toward Powell herself:

4. The Court’s Bias and Rancor Was Palpable at the September 29,2020, Hearing.

The hearing on the Government’s Motion to Dismiss marked the first time a federal judge has presided over a hearing regarding a defendant against whom he personally litigated to prolong his prosecution—not to mention defying the writ of mandamus issued by an appellate court. His antipathy for defense counsel Sidney Powell was evident as he grasped at straws in his attempt to create a false narrative of the case itself, conjure up the political bias he and his amicus claim motivated the dismissal motion, and manufacturing non-existent ethical issues. 

Powell then illustrates the personal attacks launched against her by Sullivan--attacks which were clearly premised on the notion that the President and the Attorney General are so corrupt that communicating with them somehow becomes an ethical violatin. I well recall how stunned I was when Sullivan initiated these wild attacks, and added the bizarre and utterly irrelevant rationale that he wanted to bring these matters to the attention of the "public"--as if an ethical violation is somehow defined by public opinion:

First the court insinuated Ms. Powell had committed an ethical violation by writing a letter to the Attorney General on June 6, 2019, requesting an independent review of the Flynn file. The court expressly stated he wanted to bring this to the attention of the public—that it had been “under the radar screen.”6 

...

The second aggressive attack and outside the bounds of the motion to dismiss was to question Ms. Powell about communications with the President. Judge Sullivan demanded an answer as if communicating with the President in itself was some kind of violation of ethics or of law, when, in fact, it is neither.7 

...

In this instance, and throughout the hearing, Judge Sullivan’s remarks reflected his personal view that both the President and Attorney General Barr are corrupt and simply protected a friend of the President—never mind the hundreds of pages of newly-disclosed evidence, the three IG Reports of the agents’ lies under oath, their assorted misconduct concocting the “case” against Flynn, or their terminations for cause. 

With that introduction, Powell proceeds to illustrate Sullivan's "grasp[ing] at straws", by  providing six examples, six "straws". I want to call attention to one of those straws in particular, because I suspect that it's an issue that will come up again. 

e. Straw #5: Dismissal without prejudice—evincing his political interest in prosecution by a new attorney general.

This judge asked whether he could dismiss the case without prejudice, thereby permitting a future attorney general or a future administration to reopen the prosecution of General Flynn. Hr’g Tr. 09-29-20 at 76. He also wanted to know if a new attorney general could pursue General Flynn for uncharged conduct. Id. The court pushed this issue despite well-knowing the purpose of Rule 48(a) to foreclose prosecutorial harassment and the government’s unequivocal motion to dismiss with prejudice. Rinaldi v. United States, 434 U.S. 22 (1977).

Judge Sullivan himself noted in United States v. Pitts, 331 F.R.D. 199, 202 (D.D.C. 2019), “the principal object of the ‘leave of court’ requirement is apparently to protect a defendant against prosecutorial harassment, e.g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection.” Again, this court shut down defense counsel’s discussion of Pitts. Hr’g Tr. 09-29-20 at 145. It could not be more obvious even to the untrained observer that this judge, amicus Gleeson, Ms. Wilkinson, and those politically aligned with them, are delaying, posturing, and briefing this case as a political tool hoping that Democrats will win the election and a Democratic administration will continue the political persecution of General Flynn. That is the very abuse a Rule 48(a) dismissal is to prevent.

I was shocked when the government lawyer--I forget which one now--responded to Sullivan's question by stating that, while they were asking for dismissal with prejudice (meaning that Flynn cannot be prosecuted again on these matters), they might accept dismissal without prejudice (meaning a Biden administration could reopen the case).

Powell points out that Sullivan himself understands the purpose Rule 48, which governs such motions. The purpose is precisely to scrutinize possible abuses of dismissal without prejudice! I'm not sure whether this issue has ever been litigated but, as Powell says, this contemplated action by Sullivan evinces a strong personal interest in having Flynn prosecuted--despite an overwhelming showing of government misconduct from the very inception of an investigation against Flynn. This smacks of injecting a judge's own views into a decision that should be left to the executive and the executive alone.

I'm glad that Powell raises this issue, and if Sullivan goes down that road I very much hope that both Powell and DoJ will appeal. It seems clearly abusive and a clear infringement on executive functions that steps well outside the bounds of permissible judicial discretion.