The Michael Flynn case has opened a new front in the woke war on objectivity: Within the federal judiciary, we now have judges taking sides in the cases before them. It’s a development directly at war with the political philosophy that animates our Constitution. It would, if left unchecked, destroy the neutrality of the federal courts. If that were to go, the judiciary’s legitimacy and public respect for its dictates would be destroyed.
When the Justice Department decided to agree with Flynn that his prosecution was unfounded and joined in his motion to dismiss the criminal charges against him, presiding Judge Emmet Sullivan refused. Instead, he appointed another lawyer, who had already gone on public record opposing dismissal, to “advise” the court whether Flynn should be prosecuted even after the prosecutor chose to end the case. The adviser later came through with a 70-page brief accusing the Justice Department of cronyism and corruption.
Flynn appealed, and the Court of Appeals held the judge had no authority to do anything other than what the prosecutor and the defendant had jointly agreed upon. He could not, the court held, take a side in the case or seek a resolution unwanted by either of the actual parties.
Now, Sullivan has doubled down on his insistence that he need not be neutral: He has, as if he were a party to the case, filed a motion in the court of appeals asking that its decision be vacated and that the entire District of Columbia appellate bench rehears the matter. In so doing, he has dropped all pretense of neutrality and revealed his desire to steer the criminal case against Flynn, rather than presiding over it as a neutral figure who interprets and applies the law.
Another judge in the case has taken the same approach. At oral argument on Flynn’s appeal, Judge Robert Wilkins proposed the following:
Like Sullivan, the judge in Wilkins’s example is not a neutral decisor. He is on the political ramparts and inviting others to join him there.
How would this work in practice? A motion for dismissal of an indictment, under Federal Rule of Criminal Procedure 48(a), would be denied by a judge who distrusts the prosecutor and believes the decision to dismiss is animated by impermissible considerations. Many people now believe that virtually every decision made by the Trump administration is driven by racism. Perhaps the judge before whom our Rule 48(a) motion is pending is such a person. So the judge writes an opinion, denouncing the effort by the prosecution to dismiss the case and making whatever allegations about the prosecutor’s motivation the judge finds persuasive. The judge has life tenure after all; he can say whatever he wants. Such a ruling isn’t appealable. Then the fun starts.
“Pressure from the public” is brought to bear. “The media,” who may share the judge’s hostility to the prosecutor or the prosecutor’s boss (the president) do their part to amplify the judge’s allegations in newspaper stories, interviews, talk shows, and late-night monologues. Sympathetic members of Congress join the effort. Most importantly, an election is never too far away. Elections can produce a new president, and that’s how you get a new attorney general and then, as Wilkins says, “a new prosecutor.” According to this understanding of the federal courts’ role, the judge’s denunciation of the prosecutor is appropriately a part of that process, which will end when “the political chips fall where they may.” If the judge gets his way, “a new prosecutor is appointed, and the case proceeds.”
A judge who rules with the expectation that he can make “political chips fall” as a result of how he rules has crossed the clearest line there is distinguishing the federal courts from the other two branches.
It should hardly need explaining that judges don’t (they can’t) take sides from the bench in political disputes. They are neutral interpreters of the law; they aren’t parties to the case.
President Dwight Eisenhower was able to send the army to enforce Brown v. Board of Education, and so to integrate the schools in Little Rock, because the nation recognized that if the Supreme Court had decided the law required it, then the law required it. We had, and have, no choice as a country but to follow the law.
If the federal courts allow judges to become parties, no one will any longer believe that the judges are applying the law. They will be revealed as people trying to advance political goals. A nonelected body trying to advance political goals will not long be obeyed in a democracy.
There’s a simple way to put a stop to this: When the Court of Appeals denies (or better, dismisses) Sullivan’s petition for rehearing, it should reassign the case to a judge — an actual judge, who will be neutral. That would have to be someone other than Emmet Sullivan.
Jerome Marcus is an attorney in private practice and a former federal prosecutor.
