What did Judge Emmet Sullivan just do?
On May 16, 2019, Judge Emmet Sullivan ordered prosecutors to make public a transcript of phone calls between Michael Flynn and Russian ambassador Sergey Kislyak made late in 2016. The judge also ordered that the Flynn-related parts of the Mueller Report be unredacted.
On June 4, via minute order (one that is entered by the judge and made available in a notice), Sullivan wrote: “On May 16, 2019, the Court issued multiple Minute Orders that ordered the government to file on the public docket certain materials and information. Upon consideration of the government’s submissions in response to those orders, the government is not required to file any additional materials or information on the public docket pursuant to the Court’s Orders of May 16, 2019.”
The nature of the minute order from June 4 is much different from what Sullivan demonstrated in prior minute orders and prior statements from the bench regarding the Flynn case. It is unclear what exactly the government submitted that changed Sullivan’s mind, but this is a major shift in his jurisprudence. What we do know is that the Justice Department attorneys filed a statement on Friday claiming that the recordings were not used in establishing Flynn’s guilt or in the sentencing of Flynn.
There are a few possibilities in all of this. One is that whatever is in that recording would put national security at risk if released, including the methods used to capture the call. The more likely possibility is that the Trump administration knows that the actual words contained in the exchange between Kislyak and Flynn would significantly damage Trump because it would show knowledge and coordination with Russia. It is surprising that Judge Sullivan took the government’s word on things and reversed course. The mission to get this transcript revealed in a court of law must continue unabated.
Daniel is a lawyer writing and teaching about SCOTUS, and is the author of the book “The Chief Justices” about the SCOTUS as seen through the center seat.