Thread by @McAdooGordon

Flynn. So this is going to be a threat about the Motion to Disqualify that Sidney and team filed last week seeking to have Judge Sullivan remove himself from the case. /1

I'm going to talk about the pleading generally first - a high level takeaway - and also the timing issues and then I'll go through it and that lastly I'll talk about what will/can happen with it. /2

There has not been a ton of commentary on this pleading from lawyers. The reason for that is I think two fold: 1. It is sometimes difficult for lawyers to talk about whether a judge is misbehaving for fear of retaliation or for fear of saying something inappropriate themselves./3

2. Folks want to support Flynn & criticizing things his counsel has done could be seen as disloyal to the team. I'm of the view that the truth is the truth on both scores, so I'm going to say what I think. As you all know I'm a big free speech proponent so I'm walking the walk./4

Moving to disqualify (or recuse) a judge is always difficult, particularly depending upon the reason you're asserting. And you have to make the motion to that judge not someone else to rule on first. The theory is that a judge should be expected to fairly evaluate the argument./5

Motion to disqualify or recuse are not often made. Usually there is no need for them. And often they deal more with a conflict of interest problem, rather than an allegation that the judge is biased or acting improperly. So, the kind of motion that has been filed here is rare. /6

To make this thread easier to type and follow, I'm going to call it a motion to recuse because it's shorter than "motion to disqualify" although "disqualify" is the word that the statute uses and the motion uses. If you're interested, the statutes that apply are at 28 USC 455. /7

I'm going to use "Sidney" to indicate who's arguing. This is just for ease of typing & understanding. It's NOT meant as a slight on Sidney personally or to exclude the whole team. It's just easier & also makes more sense than "Flynn" as he's not writing the motion obviously. /8

Okay, so some logistics first. Sidney filed the motion to recuse on Tuesday, the 7th, which was the deadline Sullivan set for any further motions. Sullivan thereafter issued a minute order saying the Govt had until the 14th to file any response. The Govt filed on the 9th. /9

Sullivan's minute order didn't say Gleeson could file a response. Normally the moving party has the option to file a Reply but whether Sidney will do that or not remains unknown. So far Sullivan has not set a deadline for that.Under the local rules it would normally be 7 days./10

Sullivan can shorten that time by order if he wants. The Govt's response (which I'll discuss at the very end) was only 2 pages, so he could well shorten the time for Sidney to file her Reply. Under the normal rules, it would be due the 16th. /11

Either way, it should be fully briefed by week's end & Sullivan could rule on it any time. Ordinarily a judge should rule on a motion to recuse before any other pending item because the point of recusal is he shouldn't BE ruling, so this will come before the motion to dismiss./12

Sidney's motion to recuse is 40 pages long & raises a number of issues, so I would expect Judge Sullivan to write a formal opinion on it rather than simply issuing an order ruling on it. So, it is anybody's guess as to when there will be a ruling. /13

Even the Court of Appeals will not expect Sullivan to rule on the motion to dismiss - with "dispatch" or no, until he has issued a ruling on the motion to recuse. /14

High level takeaway is Sullivan will almost certainly not disqualify himself. That order can be appealed & maybe even appealed on an interlocutory basis (meaning now, not after the whole case is resolved), but I'd have to double check that; @reeveslawstl do you know right off?/15

A motion to recuse is always a gamble as you never know if the judge will hold it against you, possibly even subconsciously. On the other hand, if you really think the judge is conflicted or biased or there is an appearance that he is, it is your duty as an advocate to file./16

Even then, it is a tricky thing & needs to be done with as much tact & diplomacy as possible if you are trying to get the judge to actually recuse. That's not what this motion does. This motion is almost literally on fire. /17

So, she either decided to just vent her spleen for Sullivan's edification 😂or she figures he's going to deny the motion & she's writing for her "real" audience, which she perceives to be the Court of Appeals on an appeal from Sullivan's ruling. /18

Some might claim the discussion is so strong for "public" consumption, but what non-lawyers don't realize is that that would be improper, so I don't think that is what Sidney's doing. /19

That being said, there are some things in this motion that are kind of seriously problematic. My opinion is that Sidney's righteous indignation on behalf of Flynn got the better of her of few times in the arguments she's making. /20

It a frustration because even with the things that are questionable in the motion (which I'll flag), it's not like she's wrong really about the case overall & how unacceptable it is that Flynn has been treated so shabbily by our government. /21

I guess I'd say overall that it's a Howard Hughes kind of motion. Brilliant on the one hand; crazy on the other. /22

Okay, so to the motion: As I said: it's long. 40 pages. And part of the reason for that is that it reads like its two motions drafted by two different people stitched together. So, it's a little repetitive. The first part 2/3 reads almost like stream of consciousness. /23

The second part 1/3 reads like a different person wrote a description of the relevant law and then put in facts that apply to each section, but they are facts we've already been told before in the first part. /24

I'm not trying to be overly critical by making those observations; I'm just saying that's how it reads. They only had 7 days to file & I think the short time frame is the cause of the disjointure. W/a normal time frame for a motion they would have smoothed & polished it more./25

It starts smoothly, citing to the statutes & a recent DC Circuit case (In re Al Nashiri) that explains that recusal is warranted when an appearance of bias is shown. That means facts "sufficient to permit the average citizen reasonably to question a judge's impartiality." /26

Sidney says Sullivan satisfied that standard when "he actively litigated" against Flynn & went beyond that to "actual bias" by demonstrating "contempt & disdain" for the defense at the last hearing, including by not letting Sidney fully make a motion to recuse at the hearing./27

"Actual bias" is a separate ground for recusal under the statute from the appearance of impartiality (bias), which is also separate from a 3rd ground Sidney argues: when a judge becomes a party. She argues all three grounds throughout the motion. /28

For the lack of an appearance of impartiality ground, the motion attaches 8 pages of Tweets from ordinary citizens who listened to the September 29th hearing and commented unfavorably on Sullivan's demeanor. /29

For the judge as a party ground Sidney points to Sullivan's filing the petition for rehearing in the Court of Appeals whose rules only permit a "party" to file such a petition & the Solicitor's General's remark at oral argument about that maybe creating the appearance of bias./30

For the "actual bias" ground, Sidney points to the venerable principle that it isn't due process to be both the accuser & the adjudicator & alleges that Sullivan contravened this "when he sought charges against General Flynn for perjury or contempt . . . ." /31

This far into the motion, the discussion is tied to the law & while it is extremely accusatory & sometimes conclusory, it is not too bombastic or off the rails. We are on page 3. On the next page, things start to ramp up considerably. /32

Sidney calls Sullivan's continued presence as the trial judge on Flynn's case "a national scandal undermining confidence in the impartiality of the federal judicial system and faith in the rule of law writ large." She says the Constitution compels Sullivan to recuse. /33

This is obviously very strong language & not something that a federal judge would normally be accused of. Is it correct? Maybe. We'll see as we go. One thing tho - if you're going to accuse a judge of misbehavior, you have to be correct about what you're saying. /34

The allegation Sullivan "sought charges" for perjury/contempt against Flynn is not 100% accurate.Sullivan asked Gleeson to advise whether he could/should do that.Thinking about it & doing it are 2 different things.Even thinking about it may be a problem as we'll see but . . . /35

not accurately describing the conduct that you're claiming is problematic does not help persuade your audience or win the case. Similarly, "purple prose" such as the phrase "national scandal" is not persuasive when you haven't made the case yet on page 4. Save it for page 38. /36

The next roughly 8 pages cover a series of things Sidney argues show bias or the appearance of impartiality. These are mostly thing we all already know about, but she's articulating them in the recusal law framework. /37

First she points to the comments Sullivan made at the sentencing hearing turned sort of plea hearing in December 2018 when he suggested Flynn had "sold [his] country out" and wondered if the prosecution had considered prosecuting him for "treason." /38

You gotta give Sidney credit; she has brass balls. Some of the things she is berating Sullivan for are accurate, even if her characterization is sometimes bombastic or her conclusions may not ultimately persuade a neutral decision maker; & sometimes she is just correct. /39

If you're going to represent disfavored people, particularly in front of a judge who is hostile to the person, or to their defense, then you do have to sometimes go toe to toe with that judge and not be intimidated. You shouldn't yourself act improperly to do so, of course. /40

& sometimes legitimate advocacy is perceived by a judge as improper conduct by the lawyer when it is not because a. judges are human, & b. they get used to having their asses kissed too much (to be blunt), but a true advocate knows when what she is doing is necessary & proper./41

Equally, tho, an advocate must bear in mind that even when a judge is out of line, the lawyer must show respect to the person & the office of the judge. Not to do so is itself improper conduct for a lawyer. You are held to the standard for your own behavior, not the court's. /42

In this motion, Sidney unloads on everything Sullivan has done that in Sidney's few was unfair to Flynn or her.She's not wrong about some, & maybe most, of it. I think she's wrong in a few instances.Mostly, she properly raises her issues, but the language is often intemperate./43

This motion would have been more persuasive (to the Court of Appeals if no one else) if it were just as hard-hitting, but less bombastic, less broad brush, and less disdainful. You don't have to pull punches, but less vitriol would have made the arguments easier to accept. /44

As I said during my live tweet of the Sep 29 hearing one of the other things that's going on in this case is that Sidney knows & believes the "right side" narrative about Flynn's case & Sullivan knows & believes the "left side" narrative. They're talking but not communicating./45

So back to the motion, Sidney's accusation here is that Sullivan defamed Flynn. That is an extraordinary thing to accuse of judge of alone, but then she dials it up & alleges that Sullivan did so because he got his characterizations from watching the Rachel Maddow show. /46

I'm sure most people on the right have seen this accusation: that Sullivan watched Maddow the night before the hearing & parroted her talking points. Sidney cites to the transcript of the show, which is available online. /47

The talking points that are supposedly the same are the Flynn "sold his country out" and was a natsec advisor to DJT's campaign while a foreign agent for Turkey. I had heard this accusation before but never the precise supposed wording similarities. /48

I must say, I was not impressed with this argument. "Sold his country out" is a common phrase. And there is apparently no reference in the Maddow transcript to "treason." /49

Maddow may have accused Flynn of working for Turkey while working for the campaign, but Sullivan's accusation at the hearing was actually WORSE, he accused him of working for Turkey while serving in the White House as the NSA (which the prosecutors clarified wasn't the fact.) /50

Objectively speaking, the supposed overlaps are similar enough or aren't unique enough to actually conclude that Sullivan got his accusations from Maddow's program. It is equally likely (& actually maybe more so) that Sullivan drew these conclusions from reading the case file./51

Nevertheless, the motion argues as if it is established that Sullivan considered Maddow's program in the case. That is far from proven by the language, even if Sidney honestly believes it. All Sullivan need do is deny that's what happened. /52

I doubt Sullivan or the Court of Appeals will agree that this is a basis for him to recuse. It does point out the rule tho that judges are no supposed to consider communications made outside the presence of the parties, which we'll see again in this motion. /53

I know folks think that Sullivan should be disqualified just for the "treason" comment. It definitely was an outrageous thing to say.But the rules don't disqualify judges for making mistakes in their assessment of the facts particularly where they disavow them as Sullivan did./54

If Sullivan had persisted in treating the case as a "treason" case after the defense and the prosecutors had told him it wasn't that would be different. Then there would be a basis for claiming that the judge has a personal impression somehow divorced from the facts. /55

And, it isn't a basis for disqualification that a judge views the facts more harshly than the defense thinks is reasonable. The judge is entitled to think the facts are bad and to not give as much mitigating weight to good facts as another judge might. /56

The bias or impartiality that warrants disqualification has to come from something other than the facts of the case, like outside communications, political or other views that are personal to the judge, improper factors about the defendant (race, nationality, religion), etc. /57

The next argument is that Sullivan "abandoned any pretense of neutrality" & was more & more influenced by "extra-judicial" sources. She means things outside the case. This is interesting because the rules preclude communications outside the parties' presence, but . . . /58

the rules don't prevent anything and everything that is outside the four walls of the courtroom from affecting the judge, nor do they preclude things that are outside the case from being drawn into the case if it's done properly. We'll see some examples of both. /59

First, Sidney is talking about the "Former Watergate Prosecutors" who wanted to file an amicus brief in Sullivan's court. She says they were clearly antagonistic to Flynn (which they were) & were a "catalyst" for Sullivan to say other groups could file amicus briefs too. /60

She points out that Sullivan had previously denied 24 other requests for people to file things in Flynn's case & that he promptly denied two defense motions to prohibit the filing of amicus briefs. /61

These facts are true, but in and of themselves they just don't support an argument that Sullivan is letting outside influences improperly interfere with his judicial analysis or behavior. /62

The 24 denied motions to file were properly denied because they were from members of the public who inappropriately want to participate in Flynn's case because they are mentally ill. Every high profile case draws these. The judges routinely deny them. /63

The Former Watergate Prosecutors' motion is not 1 of those; it's a bone fide pleading from a group of well-known prosecutors asking to offer advice as "friend of the court" on a criminal procedure policy issue, exactly the kind of amicus that court's routinely do allow. /64

One of the problems here (& we will see it again later) is that this argument is essentially saying it was improper for Sullivan to allow amicis in his court & that that shows bias. The problem is the Court of Appeals already rejected this argument. /65

These facts are not disqualifying & the motion doesn't explain why they are other than baldly saying they are extra-judicial. But they AREN'T extra-judicial if permitting the amicus is allowed, and it is. And saying that allowing amicus is in extra-judicial is incorrect. /66

The next argument is that reading Gleeson's op-ed & taking it's advice to appoint an amicus & appointing Gleeson himself to that post to argue against the Motion to Dismiss is a basis for disqualification, although it's not clear which ground is being relied upon./67

Sidney always has some great lines in her briefs. She say: "Judge Sullivan took Gleeson's op-ed as a job application" 😂That is funny. /68

The motion argues that appointing an amicus in a criminal case is a "violation" & contrary to the local rules of the court. This was argued to the Court of Appeals & they rejected it. Sidney conceded in the oral argument that the trial court's do do this. /69

I was therefore very surprised to see this argument in the brief. It is very dicey to argument that something that the Court of Appeals already said did not warrant disqualification is a ground for disqualification. This is 1 place where her zealousness may have overtaken her./70

The motion also argues that Gleeson had a "conflict" because his law partner represented Sally Yates, the Obama holdover Acting Attorney General who urged DJT to fire Flynn & who "oversaw" Crossfire Razor and Flynn's FBI interview. /71

This is not a "conflict" as lawyers would understand it, however. The relationships described may well prevent Gleeson & his firm from representing Flynn, but that's not what he was tasked to do. To the contrary, he is opposed to Flynn's interest by arguing against dismissal. /72

These facts show Yates opposed Flynn; she would have a bias issue that could be explored if she were a witness. But that doesn't mean her lawyer does or her lawyer's law partner, Gleeson, *because* they are her lawyers. Lawyers are not their clients. /73

Besides that Gleeson's bias is clear from his op-ed. He is, as Judge Henderson correctly said, an "intemperate" amicus. That's a basis for discounting his opinions & advice but it's not a "conflict." Nor is the Yates angle a basis for saying *Sullivan* should recuse himself. /74

The motion also argues that Gleeson's friendship w/Andrew Weissmann was part of the "conflict." This is too attenuated for sure to be a conflict. But, Sidney is not wrong that is shows Gleeson is in the camp out to "get Flynn." It certainly reinforces Gleeson's bias. /75

What doesn't follow is that it serves to "magnify the appearance of bias of the court." There are no facts alleged that Sullivan knew of any of these connections, for one thing. /76

The motion points out other data points that show Gleeson's bias: his argument at the hearing was blatantly - & inappropriately - political. It correctly points to his plaintive wail that: "It is our justice department too." 🙄/77

This is the strongest argument against Gleeson, as it always has been. He has TDS. He sees Flynn as an avatar for DJT & it unhinges him. He inveighs against DOJ/Barr as distorting justice for making the motion to dismiss in Flynn's case, when in reality that motion is just. /78

In making that argument, tho, the motion picks up weak points that will make it easy for a non-like minded person to discard it. It faults Gleeson for calling the other lawyers "adversaries." That was clearly meant in the same way lawyers call one another "opposing" counsel./79

It says Gleeson "plainly identified w/" Sullivan & they reinforced "their mutual & unequivocal political bias" against Flynn. Listening to it, tho it sounded like Gleeson appealed to Sullivan to identify w/him based on his status as a former judge (which is improper actually)./80

The political bias & synchrony that Sidney is complaining of may well be there, but alleging it & proving it are two different things. This part of the motion asserts it, but the proof is thin to nonexistent in this section to back it up. /81

So, I can't stay up late tonight (been going for 3 hours on this thread). I will pick up again tomorrow (we're on page 8 of the motion!)To give you a little taste of where we are going I will say now that I think Sullivan should in fact recuse himself after all is said & done./82

Okay, so we're back. At the end of this section, Sidney says that she moved on Flynn's behalf at the hearing & is doing so again in this pleading to strike Gleeson's pleadings & arguments. /83

She also moves - and this is a new motion I think; I don't recall her making it at the hearing & she doesn't say that she did - to strike the letters from the lawyers for Strzok and McCabe from the record as "ex parte communications." I'll explain what that means in a bit. /84

As a wonky procedural matter, this motion is asking to recuse Sullivan, it isn't "styled" - named - as a motion for anything else. You can put multiple requests in a motion, but usually you then also style the motion to say what they all are. /85

It's a little bit better practice too to separate different requests into separate motions; it's clearer on the docket & in the rulings the court makes. If you don't style the motion w/what you're seeking or file a separate one, you risk the request being lost in the shuffle./86

Each motion also is supposed to have a proposed order drafted by the lawyer as a guide for what you want the court to say in its actual order. The court can take or leave the order of course. Sidney DID file a proposed order with this motion. /87

But, the order doesn't include language specifically ordering Gleeson's pleadings or the lawyer's letters be removed from the docket. It does say the relief requested in the motion is granted, but anyone carrying out this order would have to have the motion to know what to do./88

That's why you "style" the motion with the relief you want and specifically put the relief you want in the order. It could get lost in the shuffle if you don't, as these requests could here. I hope they don't; I'd like to see Sullivan's rulings on these two issues. /89

"Ex parte communications" means communications to the court outside the presence of the parties or a party to the litigation. In general such communications are not allowed or disfavored because in fairness a party should be able to see everything the judge is evaluating. /90

Sidney is objecting here to the letters sent to the court by Strzok and McCabe's lawyers because they are not parties to the court. I'll address this later because she talks about it at length later. /91

Sidney next raises a very interesting issue. She asserts that Sullivan's counsel, Beth Wilkinson, whom he engaged to represent him before the Court of Appeals, represents an ex parte problem also. /92

She asserts that Wilkinson (whom I'm just going to call BW from now on for brevity; no offense intended) is maybe still representing or assisting Sullivan. No way to know for sure if that's the situation, but of course it could be. /93

She then . . . woah . . .launches into how BW represented 4 HRC aides in the FBI probe into HRC's email server debacle (which was called Midyear Review by FBI, so I'm going to call it MR in this thread). She points out 2 were given immunity despite "destroying evidence." /94

Here is another example of where the left & right narratives around MR, the Russian collusion hoax & Flynn's case are colliding. These are facts known to the right, but probably not by most the left. She's tying BW to the left/Clinton/Obama camp which is opposite Flynn. /95

The she launches into the recent declassification & disclosure by Ratcliffe that the IC had learned HRC had approved a campaign plan to to tie DJT to the Russians to distract from the email server issue. /96

She points out that Ratcliffe confirmed that this was NOT Russian disinformation. She therefore says there is evidence HRC was the initiator of the web that eventually ensnared Flynn. So, she's drawing the line from HRC to BW to Flynn, set them up as adversaries. /97

She asserts that having two people (Gleeson & BW) tied to opponents of Flynn be the ones who are Sullivan's amicus & his own counsel has "created a circus of conflicts of interest & made a mockery of what should be a court of law - not cheap partisan politics." /98

Again this isn't a "conflict" but stepping back bigger picture her point is that the people Sullivan chose to advise him were biased due to prior work/views/relationships or at a minimum it looks terrible. It's not like she's politically wrong even if it's legally allowed. /99

In the hyper-partisan world that we're living in now, there is a lack of trust on both "sides" that the other "side" will act reasonably or fairly & no one wants to be judged by the "other side" whom they perceive as hopelessly biased. /100

There is also a legal norm here. The rules of ethics that guide lawyers say (and most lawyers believe) that a lawyer is not synonymous w/a client or the views of their client. This is so that even the most reviled figures can have lawyers, which everyone should be able to do./101

As you can see from the "big tech" issues that Republicans are having & other cultural issues playing out now, when "neutral" services are not available to those who have a disfavored or minority position, it starts to erode civil society. That's a big problem. /102

Legal services are the same. We, as a culture, say we believe that "everyone is entitled to a lawyer." A corollary to that idea tho is that we can't vilify the lawyers who represent people we don't like because they are just doing what we say we believe in. /103

So, in general, most lawyers have been or tried to be politically neutral. They don't give away their politics at all, or they take clients from both sides & firms donate money to both parties, etc. People want good lawyers; it shouldn't matter what your lawyers politics are./104

Up until recently, that has been pretty standard with the exception of lawyers who handled political cases, of course. Lawyers for the parties or for politicians or who practice campaign finance or other types of political law usually only took cases aligned with one party./105

But in the last few years as everything has become political, that neutrality, which kept politics out of much of the law has started to break down. Up until now it would be absurd to wonder whether a criminal lawyer was left or right but now that's sometimes a consideration./106

In this case, Sidney is recognizing this new reality, that even lawyers can sometimes be partisans & that they may be perceived by the public as biased when in the past they would not. (I think this development is terrible for the law & legal profession, btw.) /107

In this part of the motion, she is arguing that BW's mere prior representations of HRC aides make her connection to this case an issue of bias. You may be interested to know that BW was also Brett Kavanaugh's lawyer in his confirmation tho. /108

I highly doubt Sullivan (or the Court of Appeals) will think BW is biased based on her prior cases, because of the traditional view that "a lawyer is not her client."Whether the erosion of this principle in the eyes of the public will be enough to start changing things, IDK. /109

Hubs says dinner is ready! Be back in a few minutes.

/side tweet

At the end of this section, Sidney again moves to strike the "unsolicited and improper letters" from Strzok & McCabe's lawyers. She says they don't have roles in the case & should have presented any issues they had w/documents about them to the Govt. /110

She points out that it is THE PARTIES who are supposed to shape the issues before the court & the Supremes said that just last term, chastising the 9th Circuit for deciding a case based on issues raised by an amicus & not the parties. /111

She says Strzok & McCabe aren't parties & their letters (from their lawyers) aren't evidence & "must be stricken," citing the judicial Cannon 3(4) (which I'll explain later cause we're going to be seeing it again later). /112

To recall: the lawyers for Strzok & McCabe both wrote whiny letters to Sullivan complaining that copies of notes they made were altered - by having a date put on them - & it turned out Sidney got them from DOJ that way & it was FBI personnel who had put the dates on. 🙄/113

Sidney is saying: "Hey, why do these guys' lawyers get to just jump in our case? Not cool, bro." /114

Next Sidney argues Sullivan's bias is clear because he's not been enforcing his famous Brady order -the order that requires the govt to disclose helpful evidence to the defense.Sullivan is properly famous for this order; it's one of the most pro-defense orders in the country./115

Sidney rhetorically marvels at how, of all people, Sullivan can not be concerned about Brady violations in this case. She's using very strong language here, calling it evidence of "stunning" bias & Sullivan's order denying her Brady motions "scathing." /116

One day I'll write you guys a treatise on Brady, but suffice it to say here that saying a judge is biased & must recuse himself because you think he should have ruled differently on legal questions is a very very difficult sell. /117

It can be seen as evidence of the bias effecting the case perhaps, but it's not an independent reason establishing bias itself. /118

A stronger argument, which she knows because she says it's "even more troubling" is her assertion that Sullivan is IGNORING the exculpatory evidence that the DOJ has produced in support of the motion to dismiss. /119

She then compares the case to the Stevens case, saying their are really only two differences between them: 1. that Flynn's is worse because it leads to Obama & 2. the identities of the AGs advancing them, Barr for Flynn & Holder for Stevens. /120

She points to Sullivan calling the former AG Holder merely by his first name during the September 29th hearing. I did not hear that, but the transcript would show what was said & she does cite to a page of the transcript in support of this claim. /121

As an aside: transcripts are often wrong. I've had cases where I know for sure what was said & the transcript doesn't show it at all. I had 1 case where the name of the country at issue changed from Iraq to Iran half way through. Reporters are good, but not perfect. /side tweet

Next, Sidney raises the issue that Sullivan failed to proceed "with dispatch." You'll remember that that is the phrase the en banc Court of Appeals used in returning the case to Sullivan after the mandamus case. She is faulting him for not doing that. /122

She says most courts would have granted a motion to dismiss within days of getting it, that no precedent supports granting it, no hearing was even needed, & rather than following the Court of Appeals panel decision, Sullivan litigated it by petitioning for rehearing. /123

She has a long footnote here about the facts: the panel ruled, vacated Gleeson, & ordered Sullivan to dismiss. She says a trial court is supposed to follow the orders of the Court of Appeals and he did not. /124

She says he not only failed to implement the panel ruling, he delayed 15 days then "in an unprecedented move, petitioned for rehearing en banc." She says if he hadn't shown personal involvement up to that point, he did by making that move. /125

She further says that taking on the "mantle of an active litigant" triggered the recusal standards and was mandatory. She claims the Solicitor General agreed with this at the en banc oral argument. /126

What happened at the en banc hearing & in the en banc opinion though is that the full Court of Appeals ruled doing these things was NOT disqualifying. /127

Sidney is not having it. She says: "In any rational world, the en banc D.C. Circuit's refusal to disqualify Judge Sullivan must be reversed. It is wrong. A federal judge in this country cannot preside over a case involving a defendant against whom he has actively litigated." /128

Hubs and I are going for our nightly walk now. I'll be back tomorrow to finish up this pleading & the Govt response. (As of 10 tonight Sidney hadn't filed a reply so she may not be going to.) I want to finish this tomorrow so when the next development comes we are caught up!/129

Okay, and we're back! Hoping to finish this tonight! If not tonight (hubs wants to watch a movie), then definitely tomorrow. /130

Sidney's argument about Sullivan not following the panel opinion to promptly dismiss is interesting. As was noted when Sullivan filed for rehearing en banc, there is very little law about whether a judge can properly do that on a mandamus case. /131

Clearly Judge Henderson did not think so. I had tweeted at that time that Rule 35 is limited to parties, which Sullivan was not in the Court of Appeals, which Henderson also pointed out at argument. I had noted that the Court of Appeals had the power to waive that too./131

Ultimately the en banc court dodged that issue by saying that one of judges had asked for rehearing, rather than Sullivan's request being the basis for the rehearing. Sidney is using it here to say it shows Sullivan is personally invested in Flynn's case & shouldn't be. /132

She's railing too against what she sees as injustice for the en banc court to have minimized Sullivan's asking for rehearing & not conclude he's inappropriately invested.The counter-argument is that Sullivan is trying to vindicate the rights of the District Court not his own./133

This points up an issue that is fraught whenever there is a recusal/disqualification case: one of the tests is whether there is the appearance of bias, rather than actual bias. Supposedly this centers on what the public thinks. /134

But actually courts do lots of things the public thinks is too cozy but the legal system thinks is w/in limits. So there's a tension there that courts generally resolve in favor of the legal view rather than the public's for a test involving appearance. It's a bit incoherent./135

Here Sidney is really using the fact that Sullivan is doing things that are pretty unusual as alleged proof of bias. She's kind of assuming motive tho as part of the analysis. If Sullivan's doing it for himself, it's a problem; if he's doing it for his court, it's not. /136

And, again she has the hurdle that the Court of Appeals said nothing Sullivan did up until the time they sent the case back to him constituted bias or the appearance of it in their view. Sidney can say she thinks they are wrong, of course, but will Sullivan or the CoA agree? /137

That's not all she's got, of course, since more happened after the CofA sent the case back down and she argues that next. She says that the "court's protraction of the process" since then is also evidence of bias. /138

She says despite the CoA saying to move "with dispatch" he has "done anything but this." She says his Sep 1 order did not request a status report from the parties until Sep 29. A status report is a device courts use to get a read on a case w/o asking the parties to appear. /139

So, instead the lawyers confer & file a joint pleading w/the court saying where things stand & how they'd like to go forward. You can suggest dates for a hearing or set out a briefing schedule etc. There could be a followup call, but usually the court just issues an order. /140

Sullivan asked for this but his order gave 3 weeks for the report was even due, much less doing anything suggested by the parties in the report. So Sidney is saying that was a delay tactic. Sullivan said at the hearing he did that to let the CoA send the mandate back to him. /141

He wasn't technically right about that. There is no mandate from the CoA on a mandamus, although there is on virtually every other kind of case the CoA handles - that it the standard. The Appellate Rules do specifically say there is not a mandate in a mandamus tho. /142

What there is is the "effectiveness" rule Gleeson had noted earlier in the case after the panel ruled. It says an order from the CoA does not become effective for 21 days unless it says it's effective earlier. So technically the CoA decision was not effective until Sep 21. /143

In practical reality, no one was going to complain if Sullivan acted earlier than that & one could certainly say that the court's opinion saying it expected he would act with dispatch was effectively overriding that rule, but as I say, very technically, Sullivan was right./144

Still, just because you're technically right does not mean that you aren't using the rules to your advantage in a biased way, especially if there is leeway. So, Sidney notes that to cut off some of that time, she & DOJ filed a joint report earlier than Sep 21st. /145

She also faults Sullivan for choosing the last of the four dates the parties had proposed for the hearing - the 29th. Sullivan scoffed at this at the hearing saying it was a date she proposed, but her point is that of course he picked the latest one. /146

She doesn't specifically say at this point in the motion why it is that Sullivan would be dragging the case out or how that is showing bias. We'll see if she circles back to that later. /147

Next she switches to saying that Sullivan's "bias & rancor was palpable" at the Sep 29 hearing. She says it's the 1st time a federal judge presided over a hearing with a defendant against whom he'd litigated in order to stretch out his case & defied a writ of mandamus. /148

I don't know if that is literally true, but there wouldn't be many such cases if there are any others. She said his antipathy for her personally was also clear. She claims he "grasped at straws in his attempt to create a false narrative" about the case. /149

She also says that he was "conjur[ing] up the political bias" that he and Gleeson were claiming motivated DOJ to dismiss the case against Flynn & that he was "manufacturing non-existent ethical issues." /150

So, I'm going to keep going w/Sidney's argument laying out her reasons why she thinks Sullivan is biased & then later I'll do 2 things: tell you what the court did/may do & then also what I think overall. But, for now I'm dealing w/each bit, instead of the whole idea. /151

Now @SidneyPowell1 launches into the argument that Sullivan accused her of unethical conduct by writing to DOJ requesting review of Flynn's case. And, as I said during my live tweet of the hearing when he did this, Sullivan is way off base here. He should not have done that./152

He actually asked the DOJ lawyers about it 1st, asking them their opinion as to whether it was unethical behavior, which he also should not have done. There was no basis for the question & even had there been, asking for their view of the ethics was totally inappropriate./153

Fortunately Mr. Mooppan, from the Solicitor General's office correctly pointed out that anyone could have written DOJ to express concerns that Flynn's case was being handled unjustly. He turned it back on Sullivan querying why that would be a problem. /154

Further, Sullivan had the thing he was saying was "unethical" wrong. He queried whether it was unethical for Sidney to claim she represented Flynn when she hadn't entered her appearance in court yet. But as I said in my life tweet, those are 2 different things. /155

Sidney also takes Sullivan to task for using it as a gotcha type moment to gleefully spring it on her at the hearing & for cutting her off when she tried to give him factual info he was demanding from the DOJ lawyers that they wouldn't know about the letter, but she would. /156

She notes that Sullivan (she says hinted, but I recall it being stronger) stated this conduct would warrant a referral against her for discipline by the bar. That was pretty outrageous is the truth, when you know how incorrect the judge is in his assessment of the situation. /157

Judges do sometimes forget that the law & lawyering does not just exist w/in the four walls of their courtrooms. It is entirely common for people & companies to have multiple lawyers & to have some lawyers representing them in court & some not. /158

There is absolutely nothing unethical about Sidney saying she represented Flynn - because she did - even tho she had not yet entered her appearance in court. It is clear that this upset Sidney at the hearing & in this pleading & you certainly cannot blame her for it. /159

It would be extremely upsetting to be falsely accused of unethical behavior in open court, in front of your client, & by a judge asking the DOJ to opine on it & suggesting a discipline case should be filed against you. Mad props to @SidneyPowell1 for handling that w/aplomb.👏/160

The other thing is Sullivan implied asking for review is improper & it absolutely is NOT. Lawyers do that all the time -they write or meet w/higher up prosecutors or officials seeking review. This is not seeking favoritism but rather asking senior people to exercise judgment./161

Sidney says straight out in her pleading that Sullivan doing this shows he was biased against her, as Flynn's counsel. As I said before, a judge can form an opinion of a defendant based on the conduct he's on trial for & the case, but it's not really the same for the lawyer. /162

Even if a judge becomes completely annoyed w/a lawyer during a case he/she isn't supposed to let that influence the case. There are cases where the CofA has disqualified a judge because transcripts show the judge just got unhinged about the lawyer & took it out on the client./163

Sidney is using it here as an argument that Sullivan's off-base behavior about her is evidence that he is biased against her and against Flynn, so it's a little bit of a different take on it. She seems to be saying he's treating her poorly because she's Flynn's lawyer. /164

Hubs says dinner & a movie is ready! So, I will start this up again tomorrow. There is still plenty to cover, but I think we can finish tomorrow. /165

And, I'm back. Continuing in this section of the motion, Sidney argues that Sullivan made a "second aggressive attack & outside the bounds of the motion to dismiss" by asking her about her discussions with DJT about the case. /164

She claims he implied that talking to the POTUS about the case would be "some kind of violation of ethics or of law, when, in fact, it is neither." It won't come thru on the transcript, but that was indeed the tenor of Sullivan's tone orally. /165

Sidney is right that talking to the POTUS about a criminal case (or even asking for his action on it) is NOT improper or illegal. The POTUS has the power to pardon & to direct the DOJ, no matter what unhinged liberals think about that. /166

However, in practice, most politicians, including the POTUS avoid talking to DOJ about pending criminal matters. This is not because it is illegal per se, but because depending on what is said it can either be or be perceived as trying to improperly influence or obstruct DOJ./167

Obviously some things would be illegal obstruction or improper interference, such as bribes, trading favors, asking for extra-ordinary outcomes or treatment because of rank, etc. It can seem to be "swampy" as the right would say. /168

There is a difference between that, however, and asking a supervisor or the head of an agency to use the discretion that they have to properly determine if subordinates are correctly handling a matter or to report abusive practices that the higher-up may not know of. /169

It is for these reasons that members of Congress draw the line in the constituent services at weighing in on a criminal matter. It's too easy for that to look like attempted improper interference. It is easier for the POTUS, he/she is actually in charge of DOJ. /170

It is little more difficult, of course, even for the POTUS if the person who's case it is is close to or highly linked with that POTUS, then it can also look like improper conduct rather than legitimate oversight. /171

That doesn't necessarily mean that the POTUS shouldn't weigh even so, because it would be just as morally wrong to fail to act in the interests of justice merely because the person wronged is your friend & you're afraid people will complain about it. That is cowardice. /172

But in that situation it becomes even more important for it to be clear that there is injustice and that people other than the POTUS agree there is to head off claims that the action is favoritism rather than justice. /173

Here Sidney is faulting Sullivan for asking about this because she says his remarks indicate he is assuming that DJT & Barr are corrupt (which she obviously doesn't agree with) & ignoring the evidence DOJ is adducing supporting the motion to dismiss the case as problematic. /174

She then has a good sized paragraph basically saying the "Left" is just so biased they can't even grasp how biased they are, particularly in believing the Russian collusion hoax & that Flynn's whole case is a result of that. /175

She links this directly to bias due to political persuasion. A judge biased against a defendant because of his political views would always be a basis for recusal if that was admitted, clear, or could be proved. Here, Sidney is asserting it on an interesting basis. /176

She is basing it on something I've remarked on several times now in this case. There is a collision of narratives going on & it is divided along generally political lines. The rights sees as important facts the left doesn't see at all & the left emphasizes different facts. /177

It is uncomfortable in a legal argument, to say the least, because law is supposed to proceed along the path of established, objective, provable facts. They can be weighed differently, but the basic facts themselves should be roughly the same. That is not happening here. /178

Next Sidney turns to what she calls the court "torturing" the law & procedure to prosecute Flynn. She's accusing Sullivan of "smearing" Flynn by stretching the facts & law as evidenced by his tone & demeanor on Sep 29. She again references the tweets attached to the motion. /179

She says: "It was apparent that the court was desperate to find something wrong. She's saying the way he handled the hearing is evidence itself of the bias she's claiming he has. /180

Switching to a new topic, the motion turns to the topic of the 2018 sentencing. Sidney points out Sullivan said something several times in the Sep 29 hearing about how sentencing had commenced at the Dec 2018 hearing. She is right, he emphasized it noticeably I thought. /181

She correctly points out tho that there has not actually been a sentencing in this case, that what was supposed to be a sentencing turned into something else, an "extended colloquy" as Sullivan himself called it (by which he meant a part of a plea hearing)./182

She makes the inarguably correct assertion that a person has either been sentenced or he hasn't. No judgement of conviction has ever been entered on the docket (so you know: that doesn't happen until sentencing is announced & the papers for it filed on the docket). /183

She points out that this also matters for purposes of a motion to withdraw a plea, which is correct. She cites the law explaining that the standard for withdrawing a plea is more lenient (liberally granted is usually the term used) pre-sentencing than post. /184

She cites to a 9th Circuit case that specifically says this is the rule even if sentencing has "begun" but not yet finished. She points out that the fact the sentencing hearing had started is just not legally relevant for the motion to dismiss. This is completely correct. /185

She's making an argument that Sullivan talking about the status of the sentencing is an indication that he thinks it matters for purposes of the motion to dismiss when it doesn't & thus it's evidence that he's trying to wrongly "hold" the case & take it to sentencing. /186

She also says his emphasis on the irrelevant "sentencing has started" point make the summary of the case that he gave at the beginning of the hearing something other "than anything approximating a neural explanation of the case history." /187

I noticed Sullivan's emphasis on this point in the hearing also.I thought it was clear.Lawyers pick up on the factual points judges are emphasizing when they lay out relevant facts as a clue to what the ultimate ruling will be. Law follows from facts, so it should be a clue. 188

Next Sidney moves to what she calls the court repeatedly denouncing the failure of the parties to seek reconsideration of prior orders, particularly the Brady order & the scheduling order. /189

She says the scheduling order was filed after the case had gone up to the Court of Appeal, which is true, but doesn't necessarily prevent a motion for reconsideration either then or later. /190

She says there's no point in unnecessarily litigating some issues & the court has the power to correct it's own orders for error. This is true, but as she's already argued, the court is mostly supposed to let the parties guide the litigation process. /191

She says that after Sullivan denied the long Brady violation based motion to dismiss, Flynn wasn't obliged to file for reconsideration of it, which is right, but as new evidence had come forward she certainly could have. /192

There's no absolute right or wrong answer on filing for reconsideration or filing new motions in light of new facts. Sullivan's point was it's hard to complain the court is ignoring evidence when you haven't filed a motion based on that new evidence. He's not wrong. /193

At the same time, a case is moving forward all the time & new developments take place - such as a mandamus case - that change the trajectory as you go. It's not feasible - nor do the courts want - for lawyers to file every motion imaginable just in case. /194

What she's really arguing is that Sullivan is *unreasonably* Monday morning quarter backing the case when she complains about something. It is hard tho to say you've been wronged, when you have not filed a specific motion on the wrong. /195

This kind of back & forth between a lawyer & a judge about how to conduct the case is not great. It's usually a sign that the working relationship between the two has broken down & so is interesting simply because it exists. It tells you something about the state of the case./196

Sidney turns to an issue Sullivan wanted to explore at the hearing about possible future prosecutions of Flynn depending on what he does w/the motion to dismiss. She says he "scraped the bottom of the barrel looking for a path forward to prosecute" Flynn for the FARA charge./197

She says this reflects Sullivan's bias & his failure to read the defense's filings. I don't think I have ever seen a lawyer actually accuse a judge of not reading the lawyer's pleading before. (Not that many haven't maybe wanted to. 😂) /198

Sorry, guys, I had a tickle in my throat and had to go grab some water to stop coughing. /side tweet

So, in virtually all circumstances it's not okay to accuse a judge of not reading your pleadings. So, here's an example of what I said before: this pleading is 1/2 brilliant; 1/2 crazy. Throwing caution to the wind is an understatement for how to describe this assertion. /199

I get what she's saying. She's asserting Sullivan would see or do things differently if he knew the facts that are in her pleadings. But since you can't know for sure that a judge is not reading pleadings -which is contrary to the presumption- it is a disrespectful to do so. /200

Another lawyer I know describes this as "Death wish level lawyering." /201

You could say instead that the court is incorrectly ignoring evidence & arguments in your favor. And don't @ me to say Sullivan doesn't deserve respect. A sitting judge deserves respect, full stop. The system starts to break down when we start deviating from that idea. /202

Now Sidney lays out the whole FARA issue that we're probably all familiar w/that Flynn didn't think he was agreeing that the FARA statements were willfully false when he agreed to include them in the scope of his plea, which is mostly about the FBI interview. /203

I will explain that & my view on it in detail another day. Suffice it to say that Sidney cites to her earlier pleadings & the last hearing explaining this issue and says Sullivan is ignoring it. /204

She says there was in actuality "no FARA violation" & it therefore shows bias by Sullivan to be looking for a way for Flynn to be prosecuted for that later. /205

Now she turns to Sullivan's questions at the hearing about whether he can dismiss Flynn's case WITHOUT prejudice, meaning it could be brought again, rather that WITH prejudice (it couldn't be) as DOJ has moved & whether Flynn could be charged for any other uncharged conduct. /206

She points out that the more common reason that court's inquire into motions to dismiss by the govt is to protect defendants from precisely this kind of repeat, gamesmanship charging decisions & says Sullivan asking this shows bias - he wants that to be the case, she says. /207

She says it is obvious even to non-lawyers that Sullivan, Gleeson, Wilkinson & "those politically aligned with them" are handling the case as they are hoping Democrats win in Nov & a new administration "will continue the political persecution of General Flynn." /208

This is an explosive allegation. To allege a judge is refusing to dismiss a criminal case for explicitly political reasons so that it could be (improperly) continued by political actors that he is aligned with is to allege that the judge is corrupt. /209

Other than an allegation of bribery or sexual misconduct of some kind, I'm not sure there is anything that would be a more serious allegation against a judge. /210

She isn't even arguing that it's an appearance problem, but rather asserting it factually that Sullivan is engaging in this alleged political misconduct. The way she has it alleged, it could also be read as an allegation of conspiracy to do this w/Gleeson & Wilkinson. /211

Next she asserts that Sullivan (& Gleeson) incorrectly asserted at the hearing that Flynn "pled guilty twice." SHe says this is not true & has already been explained in briefs that she alleges Sullivan is ignoring. /212

Okay, so we are nearing the end of the array of issues that Sidney lays out (we are on page 21 now). Her arguments are after that & I'll discuss those in my explanation of the assessment of these issues. I've got to take a break for a little while, but I'll be back later. /213

Okay, back from my break. Onward! /214

Sidney argues the 1st plea was "not valid" because Covington had an unwaivable conflict (which it did), & it gave Flynn ineffective assistance of counsel (also true), & Judge Contreras had a basis for the appearance of bias because he's mentioned in the Strzok texts . . . /215

. . . which DOJ knew but Flynn did not. She says Contreras "should have recused immediately" but she doesn't allege Contreras knew of the text issue when the case was assigned to him & he probably didn't, because why would he? It hadn't come out publicly yet at that time. /216

She's not wrong that once the DOJ/SCO saw that Contreras had been assigned the case (it's done randomly in our court), it should have disclosed the Strzok texts naming him to Contreras & to Covington to sort out a recusal issue. /217

It has never come out publicly why Judge Contreras recused, but most people assume that it is because of those texts. What is sure is that he did recuse not long after taking the plea from Flynn. /218

No matter why Contreras recused, Sidney is also not wrong that the plea should have been redone in its entirety because of his recusal. She cites the DC Circuit case on that in this motion. /219

So to say that that first plea is something that is legally binding on Flynn is actually weak & it likely could be challenged on appeal with some degree of confidence of success in getting it overturned. /220

Sidney then explains that the second "plea," which was really a kind of melange of plea/sentencing/status hearing in Dec 2018, doesn't satisfy the requirements of the plea procedure in Rule 11 & thus isn't valid either. She's on good ground here too. /221

And, she correctly points out that Covington still had a conflict of interest that renders the plea problematic also. Now, she's right about that, but that hasn't been proved in court yet is the status. /222

There is a pending motion to withdraw the plea on that basis that would need to be ruled on if Sullivan denies the motion to dismiss, in for that motion Sullivan would have to make findings on the Covington conflict of interest issue. /223

Regardless of what Sullivan may or may not think about that issue, it is absolutely certain that Covington did have a conflict. I wrote about that last year here: thefederalist.com/2020/01/16/cov…
/224

But in this motion, Sidney is arguing Sullivan is biased evidently because Sullivan has not accepted the conflict of interest argument yet & he continues to claim (improperly in her view) that Flynn has pled guilty twice as a result of not reading the defense pleadings. /225

Sidney argues finally that Sullivan's conduct, based on many of the reasons she's stated in the motion, "mandate[s] production to the defense" of records by Sullivan to support the motion to recuse. She then lists 5 categories of documents that she demands Sullivan produce. /226

In sum these are: communications by Sullivan w/various persons about Flynn's case, such as BW, Eric Holder, Gleeson, or others; communications by BW w/anyone else about Flynn since the panel issued the mandamus; & the identity of who was on the court's line for the hearing. /227

I'm not sure even I have words for how stunned I was to read this demand for documents in a criminal case from the presiding judge or his counsel or amicus. There is no citation in the motion to any law that would permit such a demand. /228

To say that this is jaw-dropping would be the vastest understatement in the history of the vastness of vast understatements. /229

So the motion turns at this point, page 22 of 40, to the argument based on all these assertions of issues. I'm going to stop just tracking the motion now page by page & analyze & discuss. /230

Okay, had to get some water after all of that. Whew! /231

Alright, analysis & conclusions: 1st, as I said, I think it is unlikely that Judge Sullivan will recuse himself based on this motion. /232

When he'll rule on it is anyone's guess. In theory he should rule on it before ruling on the motion to dismiss because if he should recuse himself then he shouldn't rule on the motion to dismiss. The whole point of recusal is the judge is biased or unacceptably appears to be./232

Which leads us actually to the govt's response pleading. DOJ filed a two page pleading in response to this 40 page monster. If ever there were a contrast in pleadings, this, my friends, is definitely it! /233

DOJ's motion: "Oh hey judge; yeah we kind of did tell the Court of Appeals you might appear to be biased after you filed that petition for rehearing (ha ha, good times), but it's all good, dude, because . . . /234

. . . you can just grant the motion to dismiss & not have to rule on all of this stuff. (Please put this case out of its misery, we are BEGGING you.) Mmm, kay? Hugs & kisses, DOJ." /235

The odds of Sullivan taking them up on that suggestion are about as good as my chances of winning Wimbledon next year, unfortunately. /236

It's an interesting suggestion tho because by ruling in Flynn's favor on a motion that ends the case it would be hard to argue (and no one would have any motive to do so anyway) that Flynn was harmed by any bias Sullivan may or may not have on that ruling. Neat. But unlikely./237

So what almost certainly will happen is that Sullivan is going to take his time & rule on the motion to recuse & write a long opinion on it (the motion is 40 pages; it has taken me hours & hours just to write 238 tweets explaining it, so you can figure how long that will be.)/238

I think it is unlikely, tho not impossible, that Sullivan will rule before Election Day. In truth that day is legally irrelevant to Flynn's case & I have never understood the argument that the purpose of delay is to muzzle Flynn until that specific day. /239

There is no gag order in Flynn's case. Most defense lawyers advise their clients to be silent until the case is over simply because it eliminates potential problems of various kinds. /240

People have asked me whether it was a "mistake" for Sidney to file this motion because it will slow down the decision on the motion to dismiss. It does slow it down, but whether that is a mistake depends on the goal you're trying to achieve for the client. /241

It could certainly be that General Flynn agreed to the filing of this motion as part of the overall strategy even knowing that it would slow down the decision on the motion to dismiss, esp as it is by no means certain that Sullivan will grant that motion. We shall see. /242

Hubs says the roast chicken is ready, so we are going to have dinner & then I'll be back! /243

Okay, I'm back with a full stomach & a nice dram of whisky beside me, so on we march to the finish line. /244

So, setting aside what Sullivan will or won't actually do with the substance of this motion, what are the strengths & weaknesses of these arguments if any rational decision maker were to be presented with them? And what should the ruling be? /245

The majority of these arguments on their own I don't think are sufficient to justify a recusal under the law; a few don't even add any weight if you are taking them all together. /246

This is not to say that there was no basis for the motion or that there should not be a recusal, which I've already said I think there should be, so bear with me as I explain. /247

For example, in general arguments that the judge isn't accepting your arguments as set forth in your pleadings is not going to work as a basis for recusal. Courts will just brush that completely off as a *basis* for bias. /248

They will accept that conduct as proof of the *harm* that the bias is causing if you show thru other proof that the judge is biased. /249

So in this category are arguments like Sullivan isn't knowledgeable about the FARA facts, or that he continues to say Flynn pled guilty twice. A court won't find bias because of those, but might use them to illustrate how bias is affecting the case if convinced there is bias./250

Some of the arguments are simply non-provable or Sullivan will just deny them & be believed, like that he's basing statements on Maddow or not reading pleadings. These arguments sound like zingers, but are actually weak because they aren't objectively provable. /251

And what's worse, because you can't prove them & they will be perceived as extreme because they conflict w/how judges normally operate & therefore will require affirmative proof that that's what happened, they weaken your overall case when you can't conclusively prove them. /252

Some of the arguments are undercut because the Court of Appeals already ruled Sullivan didn't have to be removed based on those facts. You can say in your pleading that that decision is wrong, but that's not actually accomplishing anything other than stating your view on it. /253

Once the Court of Appeals has ruled the trial court can't go against that ruling. You can say it's wrong & why & ask the trial judge to rule differently but it's a total exercise to do so because he can't. Sometimes this is something you need to do even tho you'll lose . . . /254

. . . because you're trying to get the higher court to overrule it's ruling (which it can do), but in that scenario it has to be done very carefully & the best practice is to tell the trial judge you are only doing it for the record to take it up to the higher court. /255

& in the vast majority of cases lawyers do this, it is to take up a legal case against them, not a specific ruling in the case they're in which makes it even more fraught. It can be done for a precedent or a ruling, but for a ruling it needs to be handled even more carefully./256

So the argument in this pleading - that the CofA's ruling that Sullivan didn't have to be removed was simply wrong - needed to be handled with extreme delicacy to be successful, but unfortunately was not. /257

You would say for example that you acknowledge the ruling, but respectfully disagree & will be seeking review in the higher court & so you're presenting it to the trial court in this motion, but you understand you & he are bound by the existing ruling until it's overturned./258

You can see why you don't really want to make this argument actually because it is not strong or persuasive most of the time given how much you have to caveat it. And there are times when you simply can't make this argument at all because you're just already bound by it. /259

Here, the period of time for review of that ruling in the Supreme Ct has not run out yet. In theory, it could overrule the CoA, & at least the ruling isn't completely final yet. So you see this kind of argument more in this kind of case where you're bouncing between courts./260

But given all the issues w/this argument, you really have to wonder if it's worth it to include it in your pleading. It often just looks like sour grapes or worse that you're making an improper argument, which depending on the exact facts & procedural posture, you could be. /261

A better way to use facts that have already been ruled on is if there are new facts that justify a different decision. This can let you use the old facts, but as part of a new overall pattern. Conduct that was fine before might not be fine if coupled with new conduct. /261

his pleading makes both arguments, so it is open to the criticism that one is not proper. This discussion centers principally on the issues of whether appointing Gleeson & allowing other amicus & Sullivan litigating the mandamus by petitioning for rehearing showed bias. /262

It was a weak argument to begin with that merely allowing 3rd party amicus to file in the case showed bias given that there is a practice of doing that, although it's not routine. The CoA was dismissive of that. That argument is even weaker now because they were. /263

It was a better argument that appointing the intemperate Gleeson showed bias (given his op-ed was crazytown 🙄) The CoA treated this a little better, but said no because a court can pretty much appoint anyone; the proof of bias is in what a judge does, not asking for advice. /264

That ruling is a little more suspect because of the crazytown angle, but still the ruling makes it weaker to raise now anyway. /265

The strongest argument on the Gleeson issue was that Sullivan asked him to look into holding Flynn in contempt for perjury. That's so unusual even the lefty National Association of Criminal Defense Lawyers filed a brief supporting Flynn on it in the CoA (as did my group). /266

The CoA did not address this precise point in discussing Gleeson's appointment as a point of bias. I don't remember off the top of my head if it made it into Sidney's brief. I do think she mentioned it at the en banc hearing but it was brushed aside if I recall. /267

That part of the Gleeson appointment order shows what Sullivan is thinking about & thus is potentially evidence of bias, if coupled w/other conduct. I thought at the time that was the data point that took the case over the line into something the court should not be doing. /268

Lastly we have the issue of Sullivan filing a petition for rehearing. That happened after the mandamus request to recuse, of course, but DOJ did argue that it could have the appearance of impartiality. /269

But, the CoA ruled a district judge participating in a mandamus does not make the judge a party & a petition for rehearing in that process didn't either, nor did it indicate the court was biased. They accepted the position that the judge is advocating the court's role. /270

The CoA having ruled squarely against that argument, it's just not a basis for a motion to recuse at this point, even I think as we've discussed if you're careful to present it as something you're raising purely as a strategy to challenge it above. /271

This isn't a factual issue, like whether the contempt issue shows mental process & therefore bias, but rather a ruling as a matter of law that conduct- participating in mandamus, filing for rehearing- doesn't show bias. Thus, it can't be coupled w/other conduct either. /272

That ruling can still be challenged in a petition for certiorari to the Supreme Court, but it shouldn't be put before the district court again. /273

The arguments about whether Gleeson's & BW's participation are problematic because they are associated w/political interests against Flynn's are interesting as I said & novel given this case & the hyper-polarized times we live in but as I said they are not actually conflicts./274

There's insufficient evidence at least in this motion to establish that Sullivan knew BW would be considered in such a light (Gleeson is obvious), but the bigger issue is that the bias/appearance of bias analysis is focused on the judge, not ancillary players like this. /275

The recusal law also doesn't ordinarily contemplate this kind of larger political struggle (left v right) as properly part of the bias analysis. In general, it assumes political neutrality of judicial actors unless clearly demonstrated. /276

This is one of the fraught problems with this case, however. When law enforcement & natsec processes are used against political opponents, that distortion will follow into the court, which is not equipped to handle it any better either. /277

Particularly as the recusal standard has as one ground of disqualification the "appearance of bias," the new reality that I said Sidney is reflecting in this pleading about political "sides" becomes extremely problematic. /278

What are the courts to do when the public IS using political affiliation of lawyers (or maybe even judges) to determine if proceedings are fair, but the law does not do so? Which will change the other? This is yet another casualty of our over-polarized times, I am afraid. /279

As it stands today, a court will reject w/o too much trouble these arguments. Look at Judge Griffith's concurrence in the en banc decision saying this case is not about political issues. And Justice Roberts' "no Trump/Obama judges" statement. They truly believe that. /280

If it had to rule on it, the CoA would probably not be completely happy with the implementation of its "with dispatch" directive, but are the facts on that so bad that they will say it shows bias? I doubt it. /281

This is one of the things about bias. It's slippery. It's easier to feel & know it's there than it is to actually prove. It's intangible. The cold record of transcripts & documents & docket sheets don't convey it even when it is there. /282

I had a case years ago where it was so obvious that the judge was prejudiced against women lawyers that my opposing counsel - a man - apologized to me after the case for it. Nothing that could be appealed or proven tho. /283

Something like the "dispatch" issues here might be more easily seen as the effect that bias (alleged) is having on the case, or as the appearance of bias, rather than bias itself. A lot of disqualification motions that do succeed, do so on the appearance ground. /284

The argument about whether to seek reconsideration of orders is also not something that will likely impress the CoA; they will only see it as part of the rough & tumble of litigation. /285

The two arguments about whether there has or has not been a sentencing & whether Flynn has or has not pled guilty twice are not going to bring home the bacon either. The CoA will see these as just legal differences. /286

The reality is that federal judges have a lot of power in their courtrooms & the CoA is not all that interested in getting into the middle of those kinds of decisions or in turning them into disqualification issues. /287

That is frustrating to litigants who ARE faced with a biased trial judge, because it is exactly in all the little rulings & decisions that make up a case that a biased judge can damage the client if he or she wants to do so. /288

As lawyers & judges look at it, even the accumulation of all these issues together does not change the calculus. Although, if a court decides there IS bias then all the things become proof of the effect of the bias, as I've said. /289

On 1 argument, I am genuinely puzzled about what it made it into this motion. All these I've addressed so far may not be winners but I understand the complaint. This next one I do not understand why it's included. It's the one about the letters from Strzok & McCabe's lawyers./290

Sidney correctly argues that a court cannot consider ex parte communications. So far, so good. And, a letter from a non-party lawyer sent to a judge is indeed an ex parte communication. Also fine. /291

But the problem of an ex parte communication has a solution in the judicial cannon & the motion even cites to it. This is Canon 3(4). /292

It says: "If a judge receives an unauthorized ex parte communication bearing on the substance of a matter, the judge should promptly notify the parties of the subject matter of the communication and allow the parties an opportunity to respond, if requested." /293

In practice, the courts in this area have handled this issue by doing exactly what Sullivan did here: after receiving the ex parte communication from an outside party, the judge shares it w/the parties' lawyers & then almost always also makes it part of the record. /294

Here, Sullivan directed that the letter be filed in the case docket. That makes it available to the parties and part of the record, so it's no longer ex parte. Perhaps the federal courts where Sidney practices more often do not have this procedure is all I can figure. 🤷‍♀️/295

I'm not sure how a judge would be able to avoid this kind of ex parte communication. Even if he or she hadn't read the letter, it was sent to chambers & received & the person sending the letter would know that, so it would still be a problem. /296

In that case, the judge would probably still have to share it with the parties & then it would have to go in the record too & then of course the judge would have to read it. I just see no other way around this problem, which is I think why the canon has the solution in it. /297

Sidney isn't wrong that it would have probably been better if Strzok & McCabe's lawyers had approached DOJ first about their issues, but that's a different thing. /298

Sidney filed a second motion specifically to strike these letters after filing this motion to recuse also. I think it isn't likely Sullivan or the CoA will grant or direct the granting of either motion for this reason. /299

So, after all of that, what we have left are the arguments that are ones that a court will really have to grapple with. These are: rancor to counsel & talking about a denial w/o prejudice and future prosecutions for a FARA charge or otherwise. /300

As I said when I laid out the argument, there are definitely cases where disqualification has been ordered because it is just so obvious that the judge does not like the lawyer & that it is improperly affecting the judge's decisions. /301

There are some facts to support that argument here. The public perception as evidenced by the tweets submitted as attachments shows that some members of the public did in fact perceive a difference in how Sullivan treated Sidney v. DOJ. The CoA can't completely ignore that. /302

The other thing, as I've discussed, is the assertion that Sidney behaved unethically by writing DOJ requesting review for Flynn is really, really not correct. And, even if Sullivan had been right about that, whether it's unethical has NOTHING to do w/the motion to dismiss. /303

Asking about her discussions with DJT arguably went beyond the "oral argument" & the asking of a "few questions" at a hearing that BW told the CoA that the Sep 29 hearing would be, but at least that was factually related to the claim that the motion to dismiss is favoritism./304

And the letter to DOJ itself could also be seen as related to the inquiry about favoritism (that Gleeson loves soooooo much). Again, tho this was factual development of the record on the motion to dismiss & arguably outside the "plan," but it's relevant to the issue at least./305

But no matter how you slice it, whether Sidney was acting ethically or not at the time she was sending that letter simply has nothing to do with the motion to dismiss. Bringing it up is solely an effort in attacking counsel. /306

Doing something like that, w/no relevance & threatening a referral for discipline, which is a power move for sure, as the bar takes VERY SERIOUSLY a referral for discipline from a judge, IS the kind of thing a court will think shows bias - there's no rational reason for it. /307

And on the "lesser" standard of the "appearance of bias," it's certainly a problem - what IS the public supposed to think when a judge accuses a lawyer of unethical behavior for no good reason & threatens her with a bar complaint? Is that impartiality for the client's case? /308

The CoA (or any judge dispassionately evaluating this situation) could certainly say that that went over the line; & honestly, once a judge goes over the line there's really no way to go back. /309

The other issue that is a little less clean, but I still think could be a proper & solid ground for disqualification in this case is the discussion about future charges depending upon how Sullivan rules on the motion to dismiss. /310

The judge could certainly ask both counsel to state their view of the law as to the effect of a dismissal with prejudice vs. without prejudice if he's considering those two options. /311

But the discussion was more an inquiry into ways the case against Flynn could be recharged or differently charged if a future AG of this, but particularly another administration was considering doing so. This is problematic, especially in this highly political case. /312

And at this stage, the election is very close. The CoA would not have to pretend that it didn't know that. Why is a judge wondering about that? Certainly, the public could very well see that as inappropriate for a judge to be contemplating. /313

It's also in line w/asking Gleeson to opine on whether Flynn could be charged with contempt for perjury. Especially coupled together, it has the very distasteful appearance that the judge is looking for ways to see that Flynn is punished no matter what. That's a problem. /314

So, when all is said & done, my view is that Judge Sullivan would be better off recusing himself for these two reasons in the interest of showing the public that he is not acting on improper motivations in Flynn's case. He does not have to admit to being biased to do so. /315

Judges regularly recuse themselves when they do not think they have bias but they acknowledge that the pubic might reasonable take the view that there is bias at work & the principle that the judiciary not be seen in that light is the highest value at issue. /316

Whether he will or not I don't know. We'll see. I realized after looking at the CoA opinion yesterday that they opined on the issue of whether a motion to recuse can be mandamused (which isn't a proper verb) & the answer based on cases they cited seems to be yes.@reeveslawstl/317

So now we wait to see what happens, especially with the demand for documents that Sidney made on Sullivan, which as I said, is extraordinary. Document demands in this scenario are simply unheard of, I think. /318

Sullivan will not agree to that I don't think even if he does recuse. But, I will be fascinated to see what he says about it if he writes an opinion. /319