Presidential pardons usually resolve all outstanding legal consequences — or at least they do everywhere except in Judge Emmet Sullivan’s courtroom. Donald Trump’s pardon of Michael Flynn should have mooted the case currently dragging itself through Sullivan’s courtroom, especially because the pardon specifically applied to the case at hand. For some reason, Jerry Dunleavy reported late last night, Sullivan has extended his review of the case to include Trump’s pardon — even though no one of standing in the case has challenged it:
A federal judge appeared to give a long list of outside groups who previously weighed in on the Justice Department’s motion to drop the case against retired Lt. Gen. Michael Flynn permission to submit briefs again after President Trump issued a pardon.
The schedule indicates the judge, Emmet Sullivan, may stall on dismissing the case even after President Trump granted his former national security adviser a full pardon late last month. Appearing to ignore the Justice Department’s request for the case “immediately” to be dismissed, the judge, who has been involved in the Flynn case since December 2017, instead seemed to move forward with further debate, with the district court docket on Monday showing more than a dozen groups who had previously filed amicus briefs related to the dismissal might now be able to weigh in in the wake of the pardon.
More than a dozen such friend-of-the-court judicial orders from Sullivan were dated for Monday.
Er … why? Dunleavy links to a report from National Law Journal questioning whether the pardon was “too broad.” That, however, still doesn’t apply to the question at hand:
On Friday, fellow U.S. District Judge Reggie Walton, who is handling a Freedom of Information Act case related to special counsel Robert Mueller’s investigation, opined that Sullivan might choose to scrutinize Flynn’s pardon. Walton said he didn’t believe Sullivan “has a lot of options in reference to what he does … unless he takes the position that the wording of the pardon is too broad,” according to the National Law Journal, adding, “theoretically, 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.”
If that’s the case, however, then that would be litigated at any point where Flynn faces new charges, not to chew over the charges for which Flynn got pardoned now. This concern is overblown, however. The pardon itself does give Flynn a pardon that might apply to future charges, but only if those relate to the special-counsel probe and Russiagate. The language of the pardon clearly intends to give Flynn a clean slate from the Mueller probe, and by specifying that it applies to Flynn’s current indictment and the Mueller probe, excludes clemency for any future crimes not related to either. Obviously and understandably, Trump didn’t want Flynn to get charged again by a succeeding Department of Justice in those investigations as a way to get around his pardon.
It’s very clear that Sullivan wants to drag this out as long as possible, even though prosecutors have petitioned to drop the case and now Flynn has received a full pardon. There is no other reason for this than to exact some personal vendetta on Flynn, an animus which has been clear for a long time. He’s forcing both Flynn and the DoJ to waste money and time on a case that is now entirely moot. Maybe Sullivan just doesn’t want to be the only person to lose to Sidney Powell in 2020, but his judgment has clearly become entirely warped, and the abuse of his authority should embarrass the other justices on the DC Circuit.
The appellate court declined to deal with that issue when the DoJ appealed Sullivan’s decision to appoint a special master to debate their withdrawal of the complaint, but this is now crossing over into the Javertian absurd. It’s long past time for the DC Circuit Court of Appeals to remove Sullivan and issue the writ of mandamus directing dismissal in light of the pardon. And perhaps it’s time to think about encouraging Sullivan to change careers from the judiciary to advocacy, which has clearly become his greatest interest.
Update, 2:05 pm ET: Just a day after entertaining the notion of getting extended briefings on the case, Sullivan dismissed it a few minutes ago as “moot.” But Sullivan made sure to let everyone know how unhappy he is about it:
In formally ending Flynn’s three-year legal saga, U.S. District Judge Emmet G. Sullivan said he probably would have denied the Justice Department’s controversial effort this year to drop the case, which Democrats and many legal experts said appeared to be an attempt by Attorney General William P. Barr to bend the rule of law to help a Trump ally.
Sullivan expressed deep skepticism about the Justice Department’s stated reasons for abandoning the case, criticizing it for applying a different set of rules to Flynn, who twice pleaded guilty to lying about his contacts with Russia’s ambassador during special counsel Robert S. Mueller III’s probe of 2016 election interference.
The judge also said he was troubled by the government’s “dubious” rationales as well as aspects of its “ever-evolving justifications” that ignored applicable law, appeared to be irrelevant or to contradict prosecutors’ previous statements.
“President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot,” Sullivan wrote, adding: “However, the pardon ‘does not, standing alone, render [Mr. Flynn] innocent of the alleged violation.’ ”
Sour grapes to the end, it seems. And one does have to wonder whether the DC Circuit’s leadership might have a few gripes of their own about Sullivan’s attitude toward this case.