Is a rebellion against President Trump brewing in federal courts in the District of Columbia? We ask because of the latest development in the case of General Michael Flynn. A judge has questioned whether Mr. Trump’s pardon of the general might be “too broad.” The judge who made that comment isn’t handling the Flynn case. His comment is shocking, though, while the judge who is sitting on General Flynn’s case has yet to respond to the government’s motion that the case be dismissed as pardoned.
It was back in July that these columns first warned that Judge Emmet Sullivan, who is presiding in the general’s case, might balk at a pardon. The case had already become so bitter and freighted with politics that when Attorney General Barr moved to drop the case, Judge Sullivan refused to accord to the request the presumption of regularity — meaning the presumption that officers of the government are acting in good faith.
Violations of the doctrine of regularity are rare. If judges started doubting the good faith of government representatives, there’s no telling where it could end. The whole structure of government could collapse. In the government’s effort to drop the case against General Flynn, it has seemed to us from the start that Judge Sullivan’s game has been to run out the clock until a new, Democratic administration can come in and restore the charges.
The naifs on the Court of Appeals for the D.C. Circuit allowed Judge Sullivan to look into the government’s actions. The circuit riders said they trusted the district court to proceed with dispatch. Instead, Judge Sullivan invited so many amici into the case that it seems nigh impossible that the matter will be resolved before January 20 when Joe Biden is likely to take office and, possibly, start pursuing General Flynn again.
Could Judge Sullivan also run out the clock on the pardon? The judge who wondered in open court about what Judge Sullivan might do about the pardon is Reggie Walton. He’s a senior judge, having been put on lower courts by Presidents Reagan and both Bushes. Judge Walton, the Law Journal reports, made his comments Friday in a different case, one related to public records and Special Counsel Robert Mueller’s investigation.
Judge Walton did say, according to the Law Journal, that he doesn’t think Judge Sullivan “has a lot of options in reference to what he does” in the face of the pardon, but then added “unless he takes the position that the wording of the pardon is too broad, in that it provides protections beyond the date of the pardon.” Judge Walton said he didn’t know “what impact that would have, what decision he would make.” Was that a hint?
“Theoretically,” the National Law Journal quoted Judge Walton as musing, “the decision could be reached because the wording in the pardon seems to be very, very broad. It could be construed, I think, as extending protections against criminal prosecutions after the date the pardon was issued.” The National Law Journal quoted Judge Walton as adding, “I don’t know if Judge Sullivan will make that determination or not.”
Neither do we, though we smell trouble. USAToday just issued an op-ed piece suggesting that the pardon of General Flynn could “be challenged in court as self-dealing, corrupt, and therefore illegal.” USAToday offered no evidence. Yet its piece also suggests such a challenge could prosper on appeal. That, in our view, would place the pardon power at the mercy of the very branch of government against which the pardon has been such a powerful check and balance.
Image: Detail from the Executive Grant of Clemency for General Michael Flynn.