Judge Emmet Sullivan of the U.S. District Court for D.C. (Photo: Diego M. Radzinschi/ ALM)

In 2014, after reaching a settlement with a South Korean firm accused of paying bribes for Army contracts, U.S. Justice Department prosecutors headed to court to ask a federal judge to sign off on the agreement.

On that July morning, they were met with skepticism from U.S. District Judge Emmet Sullivan, who was then a 20-year veteran of Washington's federal trial court. In a hearing that stretched into the afternoon, Sullivan questioned the "fundamental fairness" of the Justice Department's deal with Saena Tech Corp., a deferred prosecution agreement under which prosecutors would drop the case if the company paid a $500,000 penalty, took steps to avoid future misconduct and cooperated with the government. But Sullivan seemed particularly struck by how the agreement extended what he termed a "sweetheart deal" for the firm's founder, Jin Seok Kim, sparing him from criminal charges in spite of his admitted involvement in a bribery scheme that resulted in years-long prison terms for several others.

"I mean, he gets a free ride, and a lot of people have gone to jail arguably for lesser criminal culpability," Sullivan remarked, shortly after identifying the prison terms that stemmed from the corruption investigation. Declaring that "judges are not rubber stamps for these agreements," Sullivan would pick an outsider to address his authority to consider the fairness of the agreement. He approved the deferred prosecution agreement in 2015.

Now, Sullivan is again grappling with his authority to review prosecutorial decisions, as he weighs the Justice Department's move to drop the case against Michael Flynn, the one-time Trump national security adviser who pleaded guilty to lying to the FBI. Once more, Sullivan has sought an outsider's voice, appointing John Gleeson, a former federal judge in Brooklyn, to oppose the Justice Department's abrupt abandonment of the case.

Sullivan's handling of the Saena Tech case sheds light on how long he has wrestled with questions about the roles and authority of judges overseeing criminal cases, and the case offers a clue about why he might have turned to Gleeson, now a partner at Debevoise & Plimpton, for assistance in the Flynn matter.

"It shows you his thinking. Using Gleeson as an amici is not political—it is his M.O. He is doing the same thing in the Flynn case that he has done in others, including Saena," said Barbara Van Gelder, senior counsel at Cozen O'Connor, who represented one of the executives sentenced to prison in connection with the bribery investigation that led to Saena Tech's settlement with the Justice Department.

In the Saena Tech case, Sullivan appointed Brandon Garrett, then a professor at the University of Virginia School of Law, as amicus. Garrett, now a professor at Duke University School of Law, said Sullivan's oversight of the case revealed he has "been a careful observer of the constitutional limits of prosecutorial discretion and has carefully thought about the issue and sought out information for his decision-making."

D.C. Circuit will hear from Sullivan

Flynn has asked a federal appeals court in Washington to order the dismissal of his case, in a challenge presenting questions about the scope of judges' power in criminal prosecutions. Flynn's legal team, led by former federal prosecutor Sidney Powell, has argued that Sullivan has acted outside the scope of his authority.

In his petition to the U.S. Court of Appeals to the D.C. Circuit, Flynn's defense lawyers accused Sullivan and Gleeson of being biased against him. Among other things, Flynn's defense team pointed to an op-ed Gleeson recently co-authored, in which he argued that Sullivan could reject the Justice Department's motion to dismiss and proceed toward sentencing.

A three-judge panel of the D.C. Circuit has given Sullivan a June 1 deadline to respond to Flynn's arguments. Sullivan is represented by veteran trial lawyer Beth Wilkinson.

Writing at The Washington Post, former federal appeals judge J. Michael Luttig said the D.C. Circuit should not order the dismissal of the Flynn case outright but instead send the case back to the trial court and let a different judge weigh the Justice Department's motion to dismiss.

"The judge has already abused his wide discretion by inviting outside advocates to weigh in, which would make a circus of the solemn judicial proceeding," Luttig, now counselor and senior advisor to the Boeing chief executive, said.

Federal trial and appellate courts, and indeed the U.S. Supreme Court itself, have broad powers to appoint private lawyers to represent positions that the U.S. government has abandoned. Judges generally point to their "inherent authority" to name lawyers to make arguments in those cases, however rare, where the government is no longer defending a litigation stance.

"While amici might be rare in criminal cases, having outside parties weigh in is clearly appropriate in this novel situation, where the Justice Department is seeking to block a case in which its role is effectively complete and the defendant has entered a guilty plea," said Stuart Gerson, a former Justice Department lawyer during the George H. W. Bush administration, in a The Washington Post op-ed.

'Why have a judge do this?'

As he prepares his answer to Flynn's appeal, Sullivan could revisit his review of the Justice Department's resolution with Saena Tech and, perhaps, point to his 2015 ruling in that case as a pillar bolstering his approach to Flynn's prosecution.

Alan B. Morrison, a George Washington University Law School professor who was appointed to represent Garrett in the Saena Tech case, said Sullivan's approach to the company's deferred prosecution agreement "reflects his view that the judge is not, in the words of [Williams & Connolly partner] Brendan Sullivan, a potted plant."

"If a motion is made, he has to decide the merits of the motion. And just because the parties agree doesn't mean that he's going to go along with it," Morrison said.

At the July 2014 hearing in the Saena Tech case, Sullivan asked whether the "question of fairness" should factor into his decision to approve or reject the Justice Department's deferred prosecution agreement. He said "there must be some discretion" left to the court.

"Because, otherwise, why have a judge do this?" Sullivan asked. "If the executive branch can just go ahead and enter into these agreements, why have a judge sitting up here?

Sullivan looked for precedent on the question of the court's authority to approve or reject deferred prosecution agreements. A federal prosecutor pointed him to a decision in Brooklyn federal court but, at first, only had the judge's initials: JG. The hearing proceeded, covering other issues before Sullivan identified the judge as Gleeson.

John Gleeson, partner with Debevoise & Plimpton. Courtesy photo.

"We were able to find … the judge in New York was actually Judge Gleeson, who actually issued a 20-page opinion and order," Sullivan said. "It's not published. It should have been. I think it's excellent, it's well-written, extremely well-written."

Indeed, as a federal judge in the U.S. District Court for the Eastern District of New York, Gleeson approved a deferred prosecution agreement between the Justice Department and HSBC resolving claims of money-laundering. In a 2013 opinion, Gleeson asserted judicial authority over such agreements—and pushed back against the Justice Department and HSBC's arguments that his role was more limited.

"I conclude that the court's authority in this setting is not nearly as cabined as the parties contend it is," Gleeson wrote. By entering into a deferred prosecution agreement, he said, the two sides had set in motion a court proceeding that put them under the judge's purview.

"There is nothing wrong with that, but a pending federal criminal case is not window dressing. Nor is the court, to borrow a famous phrase, a potted plant," he wrote. "By placing a criminal matter on the docket of a federal court, the parties have subjected their DPA to the legitimate exercise of that court's authority."

Sullivan drew heavily from Gleeson's opinion when, in 2015, he approved the Justice Department's agreement with Saena Tech. His decision acknowledged the limits judges face in reviewing prosecutorial decisions.

Barring legislative changes, he said, judicial reviews of deferred prosecution agreements are confined to determining whether they are "truly intended" to give defendants time to demonstrate rehabilitation and ensure that the courts are not involved in the "type of illegal or untoward activity that might impugn" their integrity.

"That authority, however, is not as limited as the government might prefer," he said.

 

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