Judge Emmet Sullivan Moves Sideways Taking His (Unconstitutional) Seat as a Senior Federal Judge

U.S. judge in Flynn case takes senior status, joining wave of jurists allowing Biden to name successors

FEB 4, 2021 | REPUBLISHED BY LIT: FEB 8, 2021

Judge Emmet G. Sullivan, whose 27-year tenure on the U.S. District Court in Washington helped shape prosecutors’ obligation to disclose evidence in criminal trials and was capped by politically explosive cases involving Hillary Clinton and Donald Trump, will retire from full-time duty.

Sullivan notified President Biden by letter Thursday that he will step back April 3, allowing Biden to fill a vacancy on the influential court that oversees the nation’s capital.

“I plan to be as active as always; my colleagues and the courthouse are my extended family and second home!” the judge said in a statement.

Sullivan, who guided generations of judges onto the D.C. Court of Appeals and D.C. Superior Court, will take “senior status” and maintain a reduced case load as permitted for federal judges after age 65 based on their age and tenure. He joins a wave of departing veteran U.S. jurists, as partisan fighting over ideological control of the judiciary has expanded to lower-court appointments.

Sullivan, 73, was appointed in 1994 by President Bill Clinton, a Democrat, and has presided over his share of scorched-earth partisan battles. He helped keep alive conservative-led open records lawsuits to probe 2016 Democratic presidential nominee Hillary Clinton’s use of a private email server as secretary of state. He more recently presided over the searing political free-for-all in the Justice Department’s abandoned prosecution of Trump national security adviser Michael Flynn.

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At a memorable December 2018 sentencing hearing, Sullivan gave voice to many Trump critics when he erupted at Flynn, who had pleaded guilty to lying to the FBI about his Russian contacts while the agency probed whether Trump aides conspired with Moscow to interfere in the 2016 U.S. presidential election.

“I’m not hiding my disgust, my disdain, for this criminal offense,” Sullivan told Flynn, a decorated combat veteran who was also accused of lobbying secretly for Turkey while advising Trump’s campaign. Pointing to the American flag behind his bench, Sullivan seethed, “Arguably, you sold your country out.”

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Flynn’s attorneys postponed sentencing. But the former three-star Army general fired them, recanted his plea and flipped his case into a crusade for Trump loyalists who castigated Sullivan as the embodiment of a “deep state” cabal that they claimed entrapped Flynn to “get Trump.”

Alan Morrison, a George Washington University law professor who has practiced before Sullivan, called him fiercely independent, and noted his refusal to automatically accede to the Trump Justice Department’s request last May to drop Flynn’s prosecution. Sullivan’s decision raised unsettled and novel legal questions.

One respected critic, former federal appeals judge J. Michael Luttig, agreed that courts were not “a rubber stamp” and had the authority to decide if dismissal of the case was in the public interest, but publicly called for Sullivan’s removal from the case because he went further to invite outside parties’ opinions.

Sullivan held firm, and the U.S. Court of Appeals for the D.C. Circuit rejected claims about his impartiality and allowed Sullivan to go forward.

“If he thinks he’s right, he’s going to do it. Sometimes he helps the government, sometimes not,” Morrison said. Trump’s pardon of Flynn on charges of lying to the FBI came before Sullivan made a final ruling. But even so, Trump did not succeed in enlisting the courts in what critics called a political favor to a president’s friend.

“He made his point,” Morrison said. “He is guided by the law, but there are times when he thinks the law needs to be moved in one direction or another — and he’ll say so.”

Judges in D.C. threatened, harassed after high-profile, political legal battles

The case brought the judge nationwide notoriety, for better and for worse. Sullivan, who is Black, received hundreds of calls, emails and letters, most of them threatening or hostile and many laced with race-based profanities. The U.S. Marshals Service increased its protection for the court after a New York man accused of leaving a death threat in a voice mail to Sullivan’s office was arrested.

Sullivan’s most virulent critics probably discounted that he began his career as an appointee of Republican presidents Ronald Reagan and George H.W. Bush to Washington’s local trial and appeals courts — and that his most lasting legal legacy may be the pursuit of government misconduct in the bungled ethics prosecution of former Republican senator Ted Stevens of Alaska.

Sullivan presided over four federal cases brought against the U.S. Postal Service in the run-up to the November 2020 election. He took on the role of an independent monitor of the mail service, holding daily status hearings on poor performance and ordering remedies that election administration experts say preserved the franchise for millions of Americans who cast mail ballots.

Before Flynn’s case, Sullivan, the son of a police officer, was perhaps best known in the legal community for his dogged support of the Brady rule, named for the Supreme Court ruling that requires prosecutors to turn over to defendants helpful, or exculpatory, evidence.

In 2009, the Justice Department asked Sullivan to dismiss a jury’s guilty verdict against Stevens for campaign finance violations because of government misconduct. Sullivan ordered a special prosecutor to investigate why FBI agents and prosecutors had improperly withheld that key witnesses had given differing accounts.

In October, Trump signed into law the Due Process Protections Act, one of the last bipartisan pieces of legislation passed by the 116th Congress, introduced by Sen. Dan Sullivan (R-Alaska) and co-sponsored by Sen. Richard J. Durbin (D-Ill.). The law was inspired by a 2017 opinion article by Sullivan and directly amended rules of federal criminal procedure to ensure that prosecutors who commit intentional misconduct may be held accountable through contempt of court or other judicial sanctions.

Judge Sullivan says he is not required to ‘rubber stamp’ DOJ’s bid to dismiss Flynn case

Post Edited: Published Versus Unpublished Opinions in Federal Circuits. Are Courts Prejudging Litigants? https://t.co/2u4hFYasNl

— LawsInTexas (@lawsintexasusa) February 7, 2021

Addy R. Schmitt, a former Sullivan law clerk, said that in his courtroom, “the government doesn’t get a free ride.”

“He views his job as making sure the government is held in check and doing what it’s supposed to do and that there’s accountability. Any attempt to skirt the process is going to be met with resistance from him. He will not just go along,” said Schmitt, now a criminal defense attorney at Miller & Chevalier.Sullivan has deep roots in D.C., having graduated from McKinley High School and received undergraduate and law school degrees from Howard University. A product of Houston and Gardner, a storied Washington civil rights law firm, Sullivan has said he was inspired to order a landlord to pay punitive damages to a tenant for “wanton, willful, fraudulent and malicious conduct” after hearing Supreme Court Justice Thurgood Marshall talk about using the law to right social wrongs.

Anna Blackburne-Rigsby, chief judge of the D.C. Court of Appeals and, like Sullivan, a Washington, D.C., native, said she has admired his “steadfast and unwavering commitment to serving this D.C. community,” and his “tremendous influence” chairing for decades a commission that has recommended scores of judicial nominations by presidents to the D.C. superior and appeals courts.

“He cares so much about this city,” Blackburne-Rigsby said. “He’s very approachable to all, and has always been wiling to speak to colleagues, as well as to students, and to new attorneys, and that’s really important to people at all stages of their careers.”

Sullivan’s plain-spokenness has at time tormented lawyers before him, but helped increase public understanding of the legal system.

“He does wear his heart on his sleeve sometimes, but so do I,” Royce C. Lamberth, former chief judge and now senior judge on the U.S. District Court in Washington, once said. A longtime colleague and Reagan appointee, Lamberth happily conceded, “It’s probably not the first quality that comes to mind when you think of a judge.”

Sullivan has presided over a broad range of cases, spanning high-profile political dramas to a menagerie of lawsuits involving animals. He sided with Ringling Bros. and Barnum & Bailey Circus in a fight over alleged abuse of Asian elephants and in a separate case upheld the status of polar bears as a species threatened by climate change.

A workaholic, Sullivan has long been known as a fierce competitor on the tennis court. During the coronavirus pandemic, he has spent time with his rescue dog, and continued to meet on Zoom every other week with nearly 50 former law clerks now working throughout the country.

Russell Wheeler of the Brookings Institution, who tracks judicial nominations, said Biden will have an opening to make his mark with existing and anticipated trial court openings. As of this week, there are at least 66 current and announced trial court vacancies — almost 10 percent of total judgeships — including 44 judges nominated by Republican presidents.

While the Trump administration and then-Senate majority leader Mitch McConnell (R-Ky.) filled more-powerful federal appeals court seats at a record pace, they “left Biden an opportunity to strengthen the Democratic-appointee presence in the district courts, which, as many judges and lawyers will confirm, is where the rubber hits the road (and stays there) for most litigants,” Wheeler said in an email.

Progressive groups last year identified about 100 active judges appointed by Democratic presidents who are retirement-eligible, and who could create additional vacancies for Biden.

More than a dozen judges nominated by presidents in both parties have announced plans to take senior status since Biden took office. Among them are three judges in Maryland: Catherine C. Blake, a nominee of Bill Clinton; Ellen Hollander, nominated by Barack Obama; and Richard D. Bennett, a nominee of George W. Bush.

Sullivan will join seven judges on senior status in Washington’s influential U.S. District Court, which oversees numerous high-profile lawsuits involving the federal government. His retirement leaves Judge Colleen Kollar-Kotelly, appointed in 1997, as the only one of 13 active judges named before Obama took office, including nine named by Obama and four by Trump.