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Thursday, May 14, 2020

Questions Looking for Answers: Judge Sullivan and General Flynn

Motion practice query. Where a judge appoints an amicus to represent a party or continue a litigation or prosecution because of an absence of adversity, then do not the parties first get notice and an opportunity to be heard to contest the appointment? Or does the court act on its own, make the appointment, and then allow the parties to make objections after-the-fact?

If the court had prior contacts with the amicus—eg, a beauty contest or competition for the starring amicus role—do the parties get to see the records of those contacts between the court and the amicus?

Who, if anyone, has oversight over Amicus (Inquisitor) Gleeson? Is it DOJ? Can DOJ assert authority over Gleeson or “his” case, like in a qui tam matter? Does Gleeson take an oath of office to support the Constitution? Is Gleeson subject to the ethical guidance which applies to federal prosecutors or the other policies of the DOJ?

Is Gleeson subject to the Appointments Clause?

Does Gleeson get paid compensation or expenses? Under what statute? Also, if he is now a public official, where can he be contacted for the right to petition? Will he get office space at the courthouse? If he is working at home, how will he secure communications which are confidential or secure materials which are public property under various records laws, and therefore must be preserved? Is Gleeson subject to Freedom of Information Act?

Does Gleeson get protection from the U.S. Marshal’s office?

When a U.S. federal judge sentences a person to a term in jail, does that order require the Executive Branch to put the person in jail, or is that merely authorization to put the person in jail? If the Executive Branch says: “We only jail people if we bring the prosecution,” then will Judge Sullivan hold the U.S. Marshal Service and the Federal Bureau of Prisons in contempt too? Where does this process of endless judicially-organized contempts and prosecutions end? 

Sorry just one more query. If Amicus Gleeson represents a party, does not he have to be a member of the bar for the U.S. District Court for the District of Columbia? Is he a member? [Gleeson is not a member of the District of Columbia bar. See <https://join.dcbar.org/eweb/DynamicPage.aspx?Site=dcbar&WebCode=FindMemberResults>] 

It turns out that you can look up who is and who is not a member of the bar for the U.S. District Court for the District of Columbia (DDC). See <https://www.dcd.uscourts.gov/bar-memberattorney-information-lookup>. If you look up John Gleeson, he is not listed as a member of the DDC bar. Finally, John Gleeson is listed on his law firms website. <https://www.debevoise.com/johngleeson?tab=biography>. Under bar admissions, he lists New York and that is it. Of course, I expect that this could be fixed with a pro hac vice motion. Has one been filed? 


PS: Thank you Instapundit and Instapundit readers! While you visit NRC, have a look around ... my co-bloggers do good work. 

Seth Barrett Tillman, Questions Looking for Answers: Judge Sullivan and General Flynn, New Reform Club (May 14, 2020, 4:10 AM), <https://reformclub.blogspot.com/2020/05/questions-looking-for-answers-judge.html>; 


Unknown said...
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Tim Kowal said...

I hold out hope that Judge Sullivan's actions are responding to the unique public/political attention to the case and accusations of "politicization of the DOJ." I hope that Judge Sullivan regrets having scolded Flynn, accusing him -- erroneously: “You were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. That undermines everything this flag over here stands for. Arguably, you sold your country out.” I hope it is a sign of restraint that Judge Sullivan didn't simply volunteer to prosecute the case himself.

Narayanan said...

Is Sullivan Court open or will all be via remote conference and paperwork?
If remote does jurisdiction/locale/venue matter anymore?

TPS said...

Tim... Hope is not a strategy for success. What the judge is doing is unconstitutional on its face IMHO. Two co-equal branches of government, and one (DOJ) has the right to initiate or cease prosecution. I think the judge is way out over his skis, compromised or addled. But either way he is wrong.

I wonder if a writ on the matter to the Supreme dads is possible Seth?

JimB said...

As I understand the practice, Gleason will simply become affiliated with a member of the DC Bar, and theoretically subject to his oversight.

Dave Hardy said...

The jurisdiction of federal courts is of course limited to "cases and controversies." If the US wants to dismiss, and the defendant wants to dismiss, where is the case or controversy? If the court has no subject matter jurisdiction, the case ends right there.

Georg Felis said...

And of course the cherry on top of the mess, "When a amicus is appointed, is there even the slightest effort to ensure they will be unbiased, perhaps by looking to see if there are any op eds published by them within the last week that demonstrate they have already taken sides and gathered rocks for the stoning?"

MKBAR said...

What the judge is doing is an appalling arrogation of power that crosses the line between judicial and executive branches. But as soon as I heard that he was not automatically granting the motion, it became clear to me that he was looking for a way to take the case away from DOJ.

I practice in NY and, when a District Attorney has a conflict that ought to bar his involvement in a case because of the rules of professional responsibility, there exists a mechanism in state law to appoint a Special District Attorney. It is well recognized that when a court does this over a DA's objection, the separation of powers doctrine is implicated. There is nothing similar in the federal practice; that is why, when AG Sessions was convinced he had a conflict, someone else from DOJ stepped into to fill the AG's role. I do not believe, however, that a federal court can remove a federal prosecutor.

With respect to the amicus question, you are correct that the parties are generally given the chance to be heard on the question. Usually, there is never a dispute although I will admit that many years ago I opposed such a request; I do not recall what happened.

In a famous case in NY State involving a rule created by one of the Appellate Divisions, the AD in question sought to file an amicus brief in the Court of Appeals. That court denied the request

The real problem with what Sullivan is doing, in my opinion, is that it will discourage prosecutors from seeking or agreeing to vacatur of ill founded judgments of conviction even when that is the right thing to do. It may force a prosecutor to violate rule 3.8 of the rules of professional responsibility which requires a prosecutor to seek vacatur when he or she discovers that a convicted defendant is actually innocent.

When a judge crosses the line like this one did, a friend of mine always comments, 'if he or she wants to be DA, let him or her resign the bench and run for the job." If Sullivan wants to make executive decisions, let him resign and run for President.

Unknown said...

Isn't Judge Sullivan supervised by the Chief Justice? How can Chief Justice Roberts even go to work and not immediately pull Judge Sullivan into his office for one of those talks? I am most strongly disappointed in this [open] politicization of the judiciary.

BTW - first time reader. very much like/admire your writing and thoughts herein. Active bookmark now.

JohnSteele said...

i'm in the legal ethics fields, where the role determines the behavior.

is Gleeson a "third party neutral," like a judge, arbitrator, or mediator? is he a "prosecutor"? is he an "advocate" for the judge's point of view and thus representing the judge? is he an "advocate" for his ow views and thus a type of party to the action? is he a special master? or maybe he's none of the above?

for all of those views, except "advocate," Gleeson's recent op-ed might be a disqualifying event.

Richard said...

You're spinning.

Eric Rasmusen said...

I have a legal question. Would it be proper for Judge Sullivan to cite the DOJ prosecutors who concealed for criminal contempt for violating Brady disclosure? If nobody else does, maybe I'll submit an amicus on that topic.

MKBAR said...

Not so much the Brady violation itself but the contemptuous conduct is in ignoring the orders directing its disclosure.

John Tanner said...

Under DC Bar Rule 49 individuals who are not members fo the DC Bar have to associate local counsel

Eric Rasmusen said...

Judge Sullivan has not done anything improper yet; he's just signalled that he might do something proper. At the moment, he's just asking for advice. I don't see why Mr. Gleeson would have to be a member of the bar, or even a lawyer. He's not going to represent anybody. He's just been asked to advise the Court, taking whatever position he personally feels is correct. To be sure, Judge Sullivan expects that he'll take the strongest possible position against Flynn, but Gleeson has no ethical or legal or moral obligation to do so.

In fact, this is probably a good sign. Rather than do something wild and illegal and stupid, Judge Sullivan is asking for advice. This advice might well make him hold back from what he would otherwise do on his own. That is true even if the advice is 90% to be wild and crazy, since Judge Sullivan is an old hand, and doesn't want to do anything crazy unless he can get away with it without being reversed and looking crooked. If the 90% can't come up with a decent legal argument for hassling Flynn, Sullivan will probably decide not to hassle him.

It's like in oral argument, when you can't tell how a judge is going to rule just from his questions.

Unknown said...
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MKBAR said...

There is no reason whatever to appoint a former judge, particularly one who just published an anti-Trump editorial in the Washington ComPost, to advise him on anything. Judges have law clerks for the very purpose that the judge purports to be seek Gleeson's help. If the judge thinks his clerks cannot give him the help he needs, let him fire them.

Frankly, the idea that a former judge has any special expertise in this area is somewhat amusing.

I believe more and more that Sullivan is auditioning to be Biden's AG.

Endang Kusumastuti said...
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