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Blatant Judicial Activism in Michael Flynn Case

James Black /

On Monday, Aug. 31, a U.S. Circuit Court of Appeals rejected President Trump’s former national security advisor Michael Flynn’s motion for an order that would have dismissed his case. This ensures Flynn’s case will drag out for months.


Flynn has argued that new evidence demonstrates that the FBI agents who interviewed him did not think he was guilty, but helped develop a criminal case against him anyway. The Department of Justice has also turned over 14 pages of documents, showing misconduct by prosecutors who suppressed evidence that would have helped Flynn’s case.


The DOJ ultimately believed that Flynn’s statements to the FBI were immaterial and irrelevant to any investigations conducted by the department. After a three-judge panel moved to end Flynn’s prosecution, Judge Emmet Sullivan, who presided over the case, took the unusual step of requesting a full-bench rehearing of the panel’s decision. Given that Judge Sullivan was extremely critical of Flynn during earlier rounds of the case’s proceedings, and seems completely intent on prolonging the prosecution, it is likely that Judge Sullivan is engaging in judicial activism.


Judicial activism is when judges abuse their power and act as legislators, seeking to use their decisions to alter the application of laws on the books, rather than upholding legitimate and constitutional laws even though they may personally disagree with them. There is a clear difference between the question of whether or not a law is unconstitutional and simply not liking a law. For unknown reasons, Judge Emmet Sullivan seems intent on prolonging Flynn’s trial, but is there a legal justification for extending the trial?


When the DOJ moved to dismiss Flynn’s case, prior precedent in similar contexts would indicate that the motion would be granted, because only the executive branch has the authority to prosecute a federal case. Instead of dismissing the case, however, Sullivan invited John Gleeson, a former judge, to deliberate. Gleeson made further arguments against the government and charged Flynn with criminal contempt.


Unsurprisingly, Gleeson had just written an op-ed  accusing the administration of corruption regarding the Flynn case. In response, the three-judge panel of the court of appeals vacated the decision to appoint Gleeson, warning that Judge Sullivan’s actions raised grave concerns about separation of powers.


Again, Sullivan refused to dismiss the case and filed a petition to have the entire circuit court revisit the panel’s decision instead. The fact that Sullivan’s petition was granted by the court is truly remarkable, because according to appellate procedure, only a “party” to a case may petition for the revisiting of a case by the full court. Under these rules, Judge Sullivan would not qualify as a party.


These actions obviously led to today’s troubling ruling by the U.S. Court of Appeals. What is fatally inconsistent about the court’s majority hearing, is that from the moment Judge Sullivan filed his rehearing petition, federal law would have required him to be recused from the case, and the resulting proceedings would not have continued, since the court would have simply selected a different judge for the case. In the U.S. judicial system, it is extraordinarily difficult to find a judge who is allowed to continue to preside over a criminal case after arguing against the defendant’s position.


According to federal law, any federal judge “Shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”  Judge Sullivan’s positions have without a doubt reasonably questioned his impartiality in the Flynn case.


Given the broad scope of judicial power in this country, it is very easy for judges to advocate for outcomes they want, even if those outcomes are inconsistent with what the law actually says. It is clear that in this particular case, Flynn’s political views matter more than his guilt or innocence.



Gerstein, J. (2020, August 31). Judge deals setback to Flynn’s attempt to end DOJ case against him. Retrieved August 31, 2020, from

McCarthy, A. (2020, August 17). He’ll Eventually Prevail, but Flynn Stands to Lose the Mandamus Fight. Retrieved August 31, 2020, from

Severino, C. (2020, August 31). The D.C. Circuit Tells Us What “Rule of Law” Really Means to the Left. Retrieved August 31, 2020, from

Smith, Z. (2020, July). It’s Time to Shut Down Judge Emmet Sullivan’s 3-Ring Circus in Flynn Case. Retrieved August 31, 2020, from

Williamson, K. (2018, July 11). Ten Thoughts on Judicial Activism. Retrieved August 31, 2020, from

Yaffe-Bellany, E. (2020, July 10). Flynn says new FBI notes show misconduct led to criminal charge. Retrieved August 31, 2020, from