Skip to main content

Now That Joe Biden Is President, Judge Emmet Sullivan Has Decided to Open Up a Judicial Vacancy


U.S. District Judge for the District of Columbia Emmet Sullivan is going to assume senior status, a semi-retirement role that will still allow Sullivan to handle some cases while also giving President Joe Biden and Senate Democrats an opportunity to fill a vacancy.

“Dear Mr. President,” Sullivan began, “Effective April 3, 2021, having previously satisfied statutory requirements set forth in 28 U.S.C. § 371(c), I intend to retain the office of District Judge pursuant to 28 U.S.C. § 371(b)(1).” I intend to render substantial judicial service to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 371(e).”

Sullivan is 73 years old and has been a District Court judge in D.C. since 1994, when he was appointed by Bill Clinton (meaning he has been eligible for senior status for some time). Statute says that “any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his or her lifetime, continue to receive the salary of the office if he or she meets the requirements of subsection (e).”

Sullivan’s critics will no doubt read into the decision by Michael Flynn’s trial judge to retire from the federal bench only after Donald Trump was out of office. The judge made headlines for the wrong reasons in 2018 when he asked if Flynn’s conduct rose to the level of “treasonous activity.” Sullivan apologized for that, but he nonetheless spoke bluntly about Flynn’s conduct.

“Arguably, that undermines everything that this flag over here stands for. Arguably, you sold your country out,” he said.

The Flynn case did not go away until Trump pardoned it away in Nov. 2020. Before then, Flynn pleaded guilty to lying to the FBI about his conversations with Russian Ambassador Sergey Kislyak on the subject of sanctions during the transition in late 2016. Flynn was never sentenced.

Instead, Flynn fired his lawyers, hired Sidney Powell, and moved to withdraw his plea—claiming that the prosecution had withheld exculpatory evidence and that the FBI had entrapped him. Eventually, the Department of Justice and Flynn’s legal team became one and the same: the prosecution and defense agreed that there should be no criminal case.

Judge Sullivan, rather than immediately granting the motion to dismiss, appointed John Gleeson, a former mob prosecutor, to argue against the dismissal of the case and to argue whether Flynn should be held in contempt for perjury. Gleeson said, in straightforward fashion, that Flynn perjured himself and ought to be punished for it.

Over the summer, the case ping-ponged from the U.S. District Court for the District of Columbia to the U.S. Court of Appeals for the District of Columbia Circuit to the en banc D.C. Circuit and back down to the district court again for more fireworks.

“I’m from Brooklyn, not for nothing, but this crime was committed in the West Wing,” Gleeson erupted during a virtual hearing in late Sept. 2020..

In advance of a much-anticipated Judge Sullivan ruling on the motion to dismiss, President Trump pardoned Flynn. In Dec. 2020, Sullivan finally dismissed the case, but not without speaking his mind at length about why the DOJ’s arguments in favor of dismissal rang hollow and reeked of pretext.

During his full-time years on the federal bench, Sullivan also memorably presided over a case about Hillary Clinton’s emails and the case of Ted Stevens. Even Sidney Powell once praised Sullivan’s service.

Read Sullivan’s letter to Biden is below:

[Image via U.S. District Court]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Matt Naham is the Senior A.M. Editor of Law&Crime.