Gen. Flynn's Attorney Makes a Motion to Disqualify Judge Sullivan from the Case

AP Photo/Manuel Balce Ceneta
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Michael Flynn, President Donald Trump’s former national security adviser, leaves the federal court with his lawyer Sidney Powell, left, following a status conference with Judge Emmet Sullivan, in Washington, Tuesday, Sept. 10, 2019. (AP Photo/Manuel Balce Ceneta)


Before the uninitiated run off half-crazy over this development, I’ll need to pour a little cold water on this story in order to inject some legal reality into the bloodstream.

This is a motion Sidney Powell is making “for the record” in case this matter was ever to go up on a “straight appeal” to the DC Circuit Court of Appeals.  Unless she raises the matter now and puts it in the “record” of the District Court case, an Appeals Court will not be willing to consider this matter in any later appeal as it will have been “forfeited” by “not having been raised below.”  In other words, a litigant needs to give the trial court judge the first chance to make the decision, and if you don’t like the trial court judge’s decision, then you get to appeal.

What she has written is mostly a “PR” piece.  The substance of her complaints — while accurate — as a legal matter won’t have any impact while the case remains in the District Court before Judge Sullivan.  He’s going to deny the motion, and then his denial would be subject to review by the Appeals Court if the case ever gets that far.

The reason for this reality is because the standard for “disqualifying” a judge is the same standard as for the judge “recusing” himself.  The statute that governs this question, by its terms, directs a district court judge to step out of the case on his own initiative when the judge concludes his conduct or words create an “appearance” of bias against one party or the other.  That means that if Judge Sullivan agreed with the points raised in the motion filed, he would have removed himself from the case already.  But he hasn’t — because he does not agree that his actions meet the definition of “bias” under the statute.


Further, General Flynn’s mandamus petition filed back in the summer sought the remedy of having Judge Sullivan removed from the case, and having it assigned to a different judge.  But DOJ did not support that effort when the government filed its brief in support of the petition.  The matter was pretty much dropped, and I don’t recall it being argued in the original oral argument before the first three-judge panel.  Judge Rao’s decision directed Judge Sullivan to dismiss the case, so taking the case away from Judge Sullivan was not necessary to her outcome.

But Judge Rao’s opinion was vacated by the en banc decision that came later.  The en banc decision could have ordered the case transferred to a different judge but did not.  If the en banc court thought Judge Sullivan’s actions to that point — including appointing a biased amicus counsel and filing the petition for en banc review as claimed in this motion — it would have been obligated to order the case transferred when it sent the case back to the district court.  The en banc court did not do that, so the only conclusion is the appeals court does not agree that Judge Sullivan’s actions and comments to date meet the statutory standard for “bias.”


The standard for disqualifying a federal district court judge is very high.  Simply disliking things he has said and done is not enough.  But most significantly, the fact that the judge has made statements or voiced opinions that show a preference for one side or the other in the dispute is not a basis for disqualification where those statements or opinions are based in the evidence of the case that the Judge has seen and/or heard.  It is expected that Judges will form opinions over time about a case when they are exposed to the evidence.  That is not proof of “bias.”  Proof of “bias” needs to be based on matters unrelated to the evidence in the case.

So, the “cold water” is that while this motion is entertaining to read, it is not likely to ever produce any substantive result.  I don’t see the case ever getting to an appeals court where Sullivan’s eventual denial of this motion will be taken up as being “correct” or “incorrect.”  I think he should recuse himself under the standards of the Rule, but he gets to decide the motion in the first instance and it’s clear he doesn’t see it the same way.

This is just my “hot take.” I’ll take some time and read through the filing and look more closely at the claims as Sidney Powell has framed them.  But this is one of those situations that defense lawyers are obligated to engage in to protect the client’s appellate rights, without really expecting a good outcome on the motion in the trial court.




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