Will Judge Emmet Sullivan accept President Trump’s pardon of General Michael Flynn? No one has suggested the possibility that he won’t, other than The New York Sun. The general’s case, though, has become a bonfire of the vanities of one district judge who has denied the presumption of regularity to an official act of the United States government — meaning Attorney General William Barr’s attempt to drop the case.
So why would Judge Sullivan credit President Trump’s workaround of a pardon? We understand, the pardon could be the least fettered of all the powers that the Constitution grants to the president. That doesn’t guarantee that a runaway judge won’t ignore or reject a pardon. The pardon power, after all, is no more holy writ than the clause in Article III that limits the power of the courts to deciding actual cases and controversies.
The reason Mr. Trump pardoned General Flynn in the first place is because the District Judge in the case, Emmet Sullivan, is refusing to accept the government’s finding — on which prosecution and defense agree — that a case or controversy no longer exists. Instead, Judge Sullivan appointed an amicus lawyer to launch a whole new probe, this time against General Flynn and the Attorney General of the United States.
This prompted General Flynn to ask the judges who ride the appeals circuit in the Columbia District to order Judge Sullivan to grant the government’s motion to dismiss the case against General Flynn. The appellate panel promptly did so. The judge refused to bow to the appeals panel, though, and instead sought a full review. The full bench threw out the panel’s order, and let Judge Sullivan proceed.
With one important caveat. “As the underlying criminal case resumes in the District Court,” the appellate bench said, “we trust and expect the District Court to proceed with appropriate dispatch.” Famous last words. That business about “trust and expect” deserves to go in the Guinness Book of World Records as the most naive statement ever issued from a federal bench. Judge Sullivan simply ignored it.
To gain a glimpse of this, we commend a visit to the docket in the case. It is festooned with various amici — friends of the court — and their applications to file briefs. They include “separation of powers scholars”; the “national association of criminal defense lawyers”; “former federal prosecutors and high ranking Department of Justice officials”; and the chairman and members of Committee of the House Judiciary Committee.”
Not to mention the “Lawyers Defending American Democracy, Inc.”; “Watergate prosecutors”; “Citizens United”; the states of Ohio, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Texas, Utah, and West Virginia; “criminal law professors”; and a group called “Steady State,” security veterans whose Web site says they believe President Trump is unfit.
We’re not questioning the bona fides of these worthy amici. We’re just suggesting that Judge Sullivan appears to have no intention of bowing to the order of the Court of Appeals that the district court proceed with dispatch. It would take months just to sort through all these amici briefs. The circuit was had. No wonder President Trump granted a pardon. If the court accepts it, we’d be amazed — but delighted to be wrong.