The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday I highlighted former judge Michael Luttig's critique of Judge Emmet Sullivan's handling of the Department of Justice's motion to dismiss the charges against former National Security Advisor Michael Flynn.
Stuart Gerson, who served as Assistant Attorney General in the George H.W. Bush Administration and briefly as Acting Attorney General, has a response to Luttig's op-ed in today's Washington Post. Here's a taste:
Luttig argues in his op-ed that the appeals court should step in to replace the advisory counsel that Sullivan selected to argue against the motion to dismiss, block the receipt of briefs from friends of the court (including one in which I participated), and name a new trial court judge to oversee the case. With due respect, he is wrong on all counts. . . .
This would be unwarranted, unfair and an inefficient use of judicial resources. Sullivan has overseen the Flynn case, has accepted his guilty plea and is well-versed in the facts. He has done nothing improper in dealing with the extraordinary move by the government, at the 11th hour, to abandon its own case. He is an independent thinker who has stood up to the Justice Department before, most notably in using an outside counsel to uncover the tarnished prosecution of the late Sen. Ted Stevens (R-Alaska.) In this situation, that is an asset, not a demerit.
Sullivan's concern about the gravity and complexity of the issue before him is understandable, as is his effort to establish mechanisms to help ensure that he has the benefit of a competing view now that the government has aligned itself with the defense's effort to end the case. The D.C. Circuit should let him proceed.