Did Sheldon Whitehouse somehow lose the ability to count to three? After a sharp intervention by a panel from the DC Circuit Court of Appeals to Judge Emmet Sullivan’s handling of the Michael Flynn case, the Senate Democrat attacked one of the jurists, Neomi Rao, as a “cartoon of a fake judge.” Whitehouse, a member of the Senate Judiciary Committee, told Twitter followers to “watch this space” in anticipation of more attacks on Rao:
Where you see Neomi Rao, you can expect a lot of Trumpy dirt to follow. She’s a cartoon of a fake judge. Watch this space.https://t.co/aOPt7HKweo
— Sheldon Whitehouse (@SenWhitehouse) May 21, 2020
It’s worth noting that Rao wasn’t alone in the order sent to Flynn demanding answers to Sidney Powell’s writ of mandamus request. The order from the three-judge panel didn’t have any author named, nor did it note any dissent among the three in ordering Flynn to explain why he won’t accept the withdrawal motion from the Department of Justice and his actions under Rule 48. For some reason, though, Whitehouse singled out Rao — and not with any substantive criticism, but instead for ad hominem personal attack.
“Not cool,” scolded fellow Judiciary member Mike Lee (R-UT):
Not cool, Sheldon. Judge Rao is a gifted, hard-working legal scholar and jurist. I know you disagree with her here—and I strongly disagree with you on that point—but is it ever appropriate to call a sitting jurist “a cartoon of a fake judge”? I can’t think of a good reason. Ever. https://t.co/OWQvCdU9bh
— Mike Lee (@SenMikeLee) May 22, 2020
Ted Cruz accused Whitehouse of attempting “judicial intimidation” with his tweet:
Shameful. Senate Dems, tired of threatening Supreme Court Justices, turn to the court of appeals for their partisan campaign of judicial intimidation. https://t.co/FrBdvmlgUs
— Ted Cruz (@tedcruz) May 22, 2020
If nothing else, it looks more like a campaign of misdirection. The unsigned and apparently unanimous order to Sullivan looks like solid evidence that the district court judge is in trouble, Vice News writes this morning. The “surprise move” shows that Powell has a legitimate argument about Flynn’s actions, two former federal prosecutors tell Vice:
Before, a lot of folks thought Flynn’s attempt to go over Judge Emmet Sullivan’s head, known in fancy legal-speak as a “writ of mandamus,” would mostly succeed in making Sullivan very, very angry.
“This order suggests that the court is taking seriously Flynn’s request for a writ of mandamus, and his argument that Judge Sullivan may not deny the government’s motion to dismiss,” said Barbara McQuade, a former U.S. Attorney in Detroit.
Now, it’s Judge Sullivan who must explain himself. …
“Good news for Flynn,” said Gene Rossi, a former prosecutor with the Eastern District of Virginia.
At National Review, fellow former federal prosecutor Andy McCarthy also sees the order as writing on the wall. The explicit reference to Fokker Services BV and Rule 48, along with the very short time for response, sends a clear signal that the appellate jurists think Sullivan has gone off the reservation, McCarthy argues, and he thinks Sullivan knows it:
It is apt to get Judge Sullivan’s attention that the only case the panel cited is United States v. Fokker Services B.V. In that 2016 ruling, the D.C. Circuit granted a writ of mandamus against a district judge who refused to dismiss a case (on a deferred prosecution arrangement) because the judge thought the Justice Department was letting the defendant off too easily. The Fokker Court explained that, under Rule 48(a) of the Federal Rules of Criminal Procedure, a judge has no power to deny a motion to dismiss charges. The D.C. Circuit there elaborated that decisions to dismiss pending charges “lie squarely within the ken of prosecutorial discretion,” and that judges may not substitute their view that a defendant should be prosecuted in place of the Justice Department’s determination that a case should be dropped.
Let’s just call that a big ol’ hint as to what the appellate circuit thinks of Sullivan’s proposed circus. It won’t escape his attention either that their June 1 deadline for his response comes well before Sullivan’s own mid-July deadline for receipt of amicus briefs, a strong suggestion that they intend to close up the circus before it ever opens. And that doesn’t even touch on Sineneng-Smith, the brand-new and unanimous Supreme Court precedent which expressly forbids what Sullivan’s trying to do here.
The best move Sullivan can make at this point is to moot the appeal by folding his tent and allowing the dismissal motion. Don’t be too surprised if that happens late on a Friday afternoon before a holiday weekend, but given Sullivan’s clear personal animus toward Flynn in this case, don’t necessarily expect Sullivan to act in his own best interest at this point, either.