Flynn: Who’s Playing the Politics?
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
The betting in Washington seems to be that the judges who ride the District of Columbia circuit of the federal appeals court are going to turn down General Michael Flynn’s petition for a writ of mandamus to end his case. The three circuit riders certainly hinted that they are not eager to tell the district judge, Emmet Sullivan, what to do, and that they have high regard for him.
We share that regard, as we made clear in the editorial with which we jumped into this fray. Yet this case is about a claim that the Justice Department’s motion to dismiss the prosecution of General Flynn “reeks” of “improper political influence.” That reek, so far as we can tell from the filings, is entirely in the eye … er, nose … of the beholder.
That nose belongs to a famous former federal judge, John Gleeson. He came up with the “reeks” idea in an op-ed piece in the Washington Post. The evidence of political influence, let alone its improperness, is conclusory, if that. Yet no sooner was the op-ed published than Judge Sullivan appointed the op-ed writer as amicus to oppose the government’s motion.
It’s not clear whom the op-ed-writer-turned-amicus represents. This point was nailed toward the end of the hearing by Judge Neomi Rao. “Who is the amicus representing here?” she asked Judge Sullivan’s lawyer, Beth Wilkinson. The closest thing to an answer she got was that the amicus is representing a “position.” Yet whose position the amicus represents, we couldn’t discern.
Certainly the amicus doesn’t represent the public. That position is taken. The public is represented by President Trump and the officer he named — with the consent of another proxy for the public, the Senate — as attorney general. One process for removing them, impeachment, hasn’t been used on this head. There’s also the pending election.
In any event, no sooner did Judge Sullivan clothe the op-ed-writer in the garb of amicus than the op-ed-writer-cum-amicus filed in the district court a recommendation to the effect that Judge Sullivan ignore the motion to dismiss the case against the general and proceed to sentence him. This was promptly endorsed by the very Washington Post in which it started.
The Post editorial endorses Amicus Gleeson’s suggestion that Judge Sullivan should refuse Mr. Barr’s request to drop the charges. The Post calls it “one of the rare cases in which prosecutors’” — meaning, we take it, the attorney general’s and his colleagues’ — “behavior is so egregious that they deserve none of the usual respect and deference.”
So who’s playing politics here? The Post urges the appeals circuit to allow Judge Sullivan to use his discretion. It clearly hopes that the court will launch a new fishing expedition to embarrass Attorney General Barr and President Trump before November 3. That isn’t the role of our courts. It’s just the sort of thing against which the Founders were trying to guard when they separated the government’s powers to begin with.