Government Caught Between a Recusal Motion and Desperation

Last week, Sidney Powell made her first formal request that Judge Emmet Sullivan recuse.

In response, Judge Sullivan said (while noting the proper time for such a request was last year), file a motion.

Sidney did.

It was a shitshow.

Nevertheless, Judge Sullivan politely invited the government to weigh in.

They’ve now done so. While not disagreeing with Flynn, they argue that the way to proceed is on the motion to dismiss — and press for urgent response.

The United States of America, by and through its undersigned counsel, respectfully files this response to General Michael T. Flynn’s Motion to Disqualify Judge Emmet Sullivan, United States v. Flynn, 17-cr-232 (Doc. 161), filed on October 7, 2020. As this Court is aware, during the mandamus proceedings before the en banc Court of Appeals for the D.C. Circuit, General Flynn asked that “any further proceedings be conducted by a different judge.” In re Flynn, No. 20-2153, Doc. 1846621 at 24. While the government did not address that request in its written pleadings, when asked during oral argument, the government offered that it had “reluctantly come to the view that there is now at least a question about appearances of impartiality” because this Court’s filing of a petition for en banc review suggested a “level of investment in the proceedings that is problematic.” In re Flynn, No. 20-2153, Doc. 1859900 (Transcript of the August 11, 2020, Hearing) at 54. The D.C. Circuit rejected that view. In re Flynn, No. 20-5143, 2020 WL 5104220, at *16 (D.C. Cir. Aug. 31, 2020).

Based in part on subsequent events, including the hearing held before the Court on September 29, 2020, General Flynn again raises the serious charge that this Court is biased and has engaged in misconduct. The government does not believe that adjudicating General Flynn’s motion is the most appropriate way for this Court to proceed. Consistent with the en banc D.C. Circuit’s statement that “[a]s the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch,” In re Flynn, 2020 WL 5104220, at *7, the government respectfully submits that instead the Court should immediately grant the unopposed motion to dismiss the criminal information with prejudice. Doing so would avoid any further delay to General Flynn and to the government, and would eliminate any need for the Court to address the disqualification motion, which would be moot.

This is a nifty way to use the purportedly agreeing sides against each other.

The government wants this done by November 3. That makes Sulliavan’s response to Powell on recusal easier.


22 replies
  1. PhoneInducedPinkEye says:

    Lol, are they saying that because a batshit lawyer publicly trashed the judge and schemed to use him as a rubber stamp, there is now “an appearance of impartiality”?

    Reminds me of how Stone complained about ABJ’s impartiality after he had his brown shirts post threats against her on twitter.

    It’s embarrassing to see the gov entertain this notion.

    • Alan Charbonneau says:

      They are saying they don’t want him to recuse. Kinda funny that they are on Powell’s side but are arguing against her.

      • Rugger9 says:

        Well, the DOJ doesn’t want Judge Sullivan to recuse IF he grants their motion to withdraw. However, all of the crap between Jensen and Barnett and Powell flinging their legal poo onto the wall I think really forces Judge Sullivan to investigate or just deny all of it and sentence Flynn.

        OT, it seems Amy Coney Barrett forgot some important stuff in her disclosures in a continuing pattern. Of interest to me is how Notre Dame helped by scrubbing out her 2013 talk but none of the others. It’s almost as if the Opus Dei wing sees her as their ticket to a SCOTUS majority. DKos has some commentary as well.

      • FL Resister says:

        Maybe AG William Barr isn’t feeling so great and can only put out so many fires at a time. He must have his hands full with the Broidy indictment and the New York AG Letitia James tax fraud matter along with a host of other major problems for the Trump administration for whom he appears to exclusively work.

        • Super Nintendo Chalmers says:

          Isn’t it such an incredible coincidence that Drumpf associates with known criminals or potential criminal targets?

      • subtropolis says:

        That’s not the impression that I got. Rather, they wish to avoid getting into it (because it’s stupid) but were nonetheless happy to reinforce Powell’s motion. With the unspoken message that they may change their minds should Sullivan go on refusing to give in.

  2. Hika says:

    “level of investment in the proceedings that is problematic.”
    A man pleads guilty and gives an allocution laying out the facts as to his guilt, and does this twice over, and then the DoJ lawyers say the judge should not be so bothered when the guilty man then say “take-sies back-sies” and pursues a strategy that is transparently about getting a free-pass from the President!?%#$*
    Are Flynn’s lawyers and the DoJ lawyers involved in this at any risk of charges for a conspiracy to obstruct justice?

  3. Spencer Dawkins says:

    I do wonder what the opportunities to keep letting Powell continue filing a motion every day or so until after January 20 might be, since this is working so well for them now …

    • PhoneInducedPinkEye says:

      Times is tough, this never-ending id stream of a proceeding is providing work for a lot of people, and is basically a stimulus package for court reporters, journalists, and post-it note vendors. May as well keep it going until the economy recovers.

  4. elise bowen says:

    “response to General Michael T. Flynn’s Motion to Disqualify Judge Emmet Sullivan, United States v. Flynn, 17-cr-232 (Doc. 161), filed on October 7, 2020”

    going to the closet now for that very-long-sleeved white jacket … because …
    Docket has this:
    “161 Jan 29, 2020 SUPPLEMENT by MICHAEL T. FLYNN re 160 MOTION for Leave to File Excess Pages for Supplemental Motion to Withdraw Plea of Guilty Exhibit 35”
    – and –
    “261 Oct 7, 2020 MOTION for Recusal and Other Relief by MICHAEL T. FLYNN.”
    [w 9 attachments]

    • bmaz says:

      An oral motion on the record, by an attorney of record, IS a formal motion, even if not accepted and demanded by the court to be submitted in writing. That is fine.

      But Powell continues to be a clown car. It is truly hard to watch.

      • elise bowen says:

        ah … thankee, mighty fog-lifter.

        their ECF #s / corresponding filing dates also tripped me up.

        • bmaz says:

          Not intimating that it is not screwed up and semi-lame, but, even if oral, if it is on the record, it is on the record. Common for a court to say, “thanks, submit that in writing” though.

      • Duke says:

        I get that Powell is in the clown car. She is not driving. Navigator is not the role either. I want to know who is the dispatcher. There is a clown car fleet and someone besides Trump is pushing buttons and pulling levers.

        This legal and human shitshow is having a massive corrosive effect on the already discredited DOJ.

        Wish I had family in Canada.

        • P J Evans says:

          Barr is doing the driving, and has been trying to keep Trmp happy. Now he doesn’t have to do that, and neither does Mitch, so they’re trying to get their wishes fulfilled before they get indicted.

  5. graham firchlis says:

    Sullivan is so smart. He hands them more rope, and predictably they throw another knot around their own necks.

    I picture him after court in chambers, robe hung, settled into an easy chair with a decent single malt, softly chuckling as he re-reads these absurdist pleadings.

    Thanks so much ew for all these Barr-busting columns. Don’t see this breadth, depth and clarity elsewhere. Pulitzer worthy.

  6. Pragmatic Progressive says:

    The en banc panel made it clear that the rehearing occurred irrespective of Sullivan’s request. It seems petty for the government to revisit that now…

    However, it is actually kind of ironic, because Sullivan could now choose to recuse, which would (as the government points out) delay disposition of the information against Flynn.

    If the case is reassigned, a new judge could strike everything Judge Gleeson submitted and then just sentence Flynn and let his appeal play out after the results of the election.

  7. Adam says:

    It seems possible that Powell is going to succeed in stretching this all out past Jan. 20 when Flynn loses all of his protection. It’s truly amazing to look back and see how many opportunities Flynn has had to just get this behind him with very little consequence, and how he has instead opted keep this going for some reason.

Comments are closed.