The Justice Department’s contention that Sullivan lacks standing seemed compelling to me. I was surprised when the Circuit appeared to ignore it in granting Sullivan’s request for full-court review; I thought they’d deny it and let the panel’s ruling stand. But it is possible that the Circuit saw this as a graceful off-ramp? When none of the Circuit’s judges asked for full-court reconsideration, that signaled to Sullivan that if he wanted it, he would have to ask for it himself. The Circuit judges probably calculated that if the irascible Sullivan made a formal application for rehearing en banc, it would be manifest that he had transformed himself into a party in the Flynn case. Then the Circuit could use the disqualification rule to nudge him aside for the sake of maintaining the judiciary’s reputation for objectivity. That would avoid all the downsides of issuing a mandamus writ while gently reminding lower court judges that they are supposed to remain umpires in these contests, not become one of the players.
To sum up, whatever one may have thought about the gravity of Sullivan’s irregular behavior back in May, he has now clearly crossed the Rubicon. It is incumbent on him to recuse himself. If he can’t bring himself to do that — a failure that would further demonstrate a lack of judicial detachment — the D.C. Circuit should disqualify him. Either way, the case should be reassigned to a new judge, who should promptly grant the Justice Department’s motion to dismiss.
I’ll conclude with a verity that seems sadly lost on Judge Sullivan: Granting the Justice Department’s dismissal motion would not be a judicial endorsement of the motion, much less a court ruling that Flynn is not guilty. Judge Sullivan is absolutely entitled to believe the Justice Department is wrong to dismiss the case, and that Flynn is as guilty as the day is long. What a judge is not entitled to do, however, is substitute his view for the prosecutor’s on the question of whether a prosecution should continue. In our system, separation of powers principles make that the Justice Department’s call.