Last week, Michael Flynn’s attorney Sidney Powell attempted to ask Judge Emmet Sullivan to recuse himself during a 5-hour hearing. Here’s how that went according to CNBC:
Powell later during the hearing asked Sullivan to recuse himself from the case, on the grounds of purported bias against Flynn, which included the judge appealing a higher court’s order that Flynn’s case be promptly dismissed.
Sullivan, seeming annoyed, waved aside her request, telling her to put it in writing in a court filing.
Today, Powell did as Judge Sullivan asked and put her request for his recusal in writing. The motion itself is quite lengthy but essentially argues that all that’s needed to force the judge to recuse from the case is the appearance of bias. In this case, Powell argues, Sullivan’s actions put him beyond the appearance of bias into actual bias against Gen. Flynn. Specifically, the motion accuses the judge of taking his talking points from Rachel Maddow:
At what was scheduled as a “sentencing hearing” but became an “extended colloquy,” Judge Sullivan expressed his “disdain” and “disgust” for General Flynn’s conduct, stated that he “sold [his] country out,” and suggested that General Flynn had committed “treason.”…There was no factual basis for these defamatory comments. Neither General Flynn’s plea to a violation of 18 U.S.C. 1001 nor the statement of offense made such allegations. Indeed, the prosecution never suggested nor considered that General Flynn committed treason… Judge Sullivan’s defamatory characterizations became instant international news—before he returned to the bench and partially walked them back.
Remarkably, Judge Sullivan’s most abusive word choices seem to have originated from the Rachel Maddow show on MSNBC the night before the hearing. Rachel Maddow made the charge that General Flynn “sold his country out” and “was a national security advisor to a presidential candidate who was secretly also a foreign agent” for the Turkish government. The Rachel Maddow Show Transcript 12/17/18, Russia Targeted Mueller, MSNBC (Dec. 17, 2018, 9:00 PM), http://www.msnbc.com/transcripts/rachel-maddow-show/2018-12-17 (“Maddow Tr.”).
The motion also cites the appointment of John Gleason as proof of bias:
On May 11, 2020, Mr. Gleeson—a long-time mentor and proponent of Mueller Special Counsel Office lieutenant Andrew Weissmann—published an opinion piece in the Washington Post and argued that:
[Judge Sullivan] can appoint an independent attorney to act as a “friend of the court,” ensuring a full, adversarial inquiry… If necessary, the court can hold hearings to resolve factual discrepancies.
Within forty-eight hours, Judge Sullivan took Gleeson’s op-ed as a job application and appointed him to implement Gleeson’s plan.
There is a section of the motion devoted to evidence of Judge Sullivan’s bias made clear at the hearing last month. One of several claims Powell makes is that Sullivan is clearly trying to find a way to allow the case to be revived should Joe Biden win the election:
This judge asked whether he could dismiss the case without prejudice, thereby permitting a future attorney general or a future administration to reopen the prosecution of General Flynn. Hr’g Tr. 09-29-20 at 76. He also wanted to know if a new attorney general could pursue General Flynn for uncharged conduct. Id. The court pushed this issue despite well-knowing the purpose of Rule 48(a) to foreclose prosecutorial harassment and the government’s unequivocal motion to dismiss with prejudice. Rinaldi v. United States, 434 U.S. 22 (1977).
…It could not be more obvious even to the untrained observer that this judge, amicus Gleeson, Ms. Wilkinson, and those politically aligned with them, are delaying, posturing, and briefing this case as a political tool hoping that Democrats will win the election and a Democratic administration will continue the political persecution of General Flynn. That is the very abuse a Rule 48(a) dismissal is to prevent.
The motion concludes:
Judge Sullivan’s increasingly hostile and unprecedented words and deeds in what has become his own prosecution of General Flynn mandate his disqualification from further participation in these proceedings and the referral of his conduct to the D.C. Circuit Judicial Council…“[A]ll that must be demonstrated to compel recusal,” then, is “a showing of an appearance of bias … sufficient to permit the average citizen reasonably to question a judge’s impartiality.” Id. The appearance of bias here is terrifying and mandates disqualification.
This case was sent back to Judge Sullivan by the Appeals Court with the expectation that he would act with “dispatch” meaning soon. Last Tuesday he held a 5-hour hearing clearly aimed at generating headlines and creating an excuse to drag out his decision. More than a week later he still hasn’t reached a decision. At this point, the only reason the media isn’t screaming about Judge Sullivan’s obvious bias is that he’s biased in the right way, which is to say against a former Trump advisor.