Friendly Fire: A Jurisdictional and Ethical Look at the D.C. Circuit’s Surprising Order that a Trial Judge Respond to a Legal Challenge to His Ruling
Earlier this month, U.S. District Judge Emmet Sullivan made headlines when he appointed a retired federal judge to oppose the Government’s motion to dismiss its criminal case against former National Security Advisor Michael Flynn, and to make a recommendation as to whether to hold Flynn in criminal contempt for perjury. The move was universally regarded as highly unusual. But, while prosecutors’ motions to dismiss charges are generally granted without much fanfare, the Federal Rules of Criminal Procedure do require leave of court, so Judge Sullivan must approve the withdrawal.
Judge Sullivan has not ruled on the Government’s motion, much less denied it. Nevertheless, Flynn responded by filing a petition for writ of mandamus in the D.C. Circuit, arguing that Judge Sullivan had exceeded his authority by appointing an amicus to oppose the Government’s motion, and in not dismissing the charges. Now, in the latest surprising turn of events in a case that has already had many, the D.C. Circuit has sua sponte ordered Judge Sullivan to respond to Flynn’s petition. The D.C. Circuit’s Order raises intriguing questions about appellate courts’ authority over trial courts, and the prospect of a trial judge defending his own order on appeal implicates important principles of judicial independence.
Can an Appellate Court Order a Trial Judge to Respond to a Petition?
There is no doubt that appellate courts have broad discretion to order parties to respond to an argument, or even to brief an issue that is not raised in the parties’ briefs. But does that authority extend to requiring the trial judge to personally defend his ruling—especially an interlocutory ruling that has not resulted in a final judgment? We don’t propose a definitive answer, but the question is grist for a lot of contemplation about the nature of courts and appellate review.
Normally, courts only consider the arguments raised by the parties, and although appellate courts examine trial courts’ rulings, under the adversarial system, it is generally left to the parties to defend or contest those rulings. Even in mandamus cases that are nominally brought against a lower court, the “‘real party in interest’” is the mandamus petitioner’s opponent, not the lower-court judge.
On rare occasions, if one party does not defend the judgment below, an appellate court might appoint an amicus curiae to argue the other side of an issue. The use of a court-appointed amicus seems to be the standard method of “defend[ing] lower court reasoning neither party endorses.” And the practice is particularly well suited to the “minority of [mandamus] cases” where neither party agrees with “lower court judgments that rest on grounds raised sua sponte by the court.” In the past, this is exactly how the D.C. Circuit has handled situations where both parties in a mandamus action opposed the trial court’s ruling—in fact, that’s just what the court did in United States v. Fokker Services B.V., the case the court cites in its order requiring Judge Sullivan to respond to Flynn’s petition.
We are unfamiliar, however, with an appellate court ordering the trial judge himself to respond to a petition challenging that judge’s ruling. Implicit in the use of an amicus to defend an orphan ruling below is the assumption that judges don’t ordinarily hale other judges into court. Whether this is a matter of comity, judicial efficiency, or structural constitutional principles akin to separation of powers is an academic question, but whatever the reason, it seems clear that ordering a lower court to directly respond in a judicial review proceeding is an extraordinary occurrence.
But just because appellate courts usually don’t require trial judges to defend their rulings, does it mean they can’t? Federal Rule of Appellate Procedure 21(b)(4) allows a court of appeals to “invite or order the trial-court judge to address the petition.” And courts have inherent powers “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases,” and something as fundamental as ordering a response to a petition seems to fall well within those powers. The All Writs Act also allows “all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” And as a matter of historical curiosity, one of the ancient forebears of the modern appeal was the common law writ of attaint, which was a quasi-criminal proceeding brought against the original judge or jury, who could be punished if the reviewing court determined they had erred. (Fortunately, by the mid-1700s, the writ of error—which much more closely resembles a modern appeal—had become the primary means of reviewing lower-court decisions, and the writ of attaint was abolished in 1825.)
So there are doctrinal and historical antecedents that could point to appellate courts having authority to order trial judges to defend rulings, and a strong customary practice of not doing so. While this all makes for some interesting navel-gazing, Judge Sullivan has more terrestrial concerns, and has hired counsel to respond to Flynn’s petition. This may obviate some of the finer questions posed by the court’s order, but there is still the unusual dynamic of a judge acting as an advocate in his own case, which raises a whole new series of questions about the canons of judicial conduct.
Does the D.C. Circuit’s Order Raise Any Judicial Ethical Issues?
The Code of Conduct for United States Judges was adopted by the Judicial Conference on April 5, 1973. The Code of Conduct for United States Judges includes the ethical canons that apply to federal judges and provides guidance on their performance of official duties. In the commentary to Canon 1, the Code notes:
The Canons are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law, and in the context of all relevant circumstances. The Code is to be construed so it does not impinge on the essential independence of judges in making judicial decisions.
The Judicial Conference has authorized its Committee on Codes of Conduct to render advisory opinions about the Code only when requested by a judge to whom the Code applies. As of the date of this post, there is no record of Judge Sullivan requesting an advisory opinion, but the D.C. Circuit’s Order likely implicates several of the ethical canons governing federal district judges, including Judge Sullivan. In particular, an Order that requires a judge to respond to a petition risks forcing the judge into acting like a party in the case rather than the impartial judge presiding over the matter. It also could require the judge to reveal his thinking before he has had a chance to issue an opinion. These potential ramifications could implicate Canon 1, Canon 2 and Canon 3 of the Code.
Canon 1, entitled A Judge Should Uphold the Integrity and Independence of the Judiciary, focuses on judicial independence, and states:
An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
Doubtless, both Judge Sullivan and the D.C. Circuit were intending to uphold these values: Judge Sullivan by examining whether dismissing Flynn’s conviction would compromise the independence of the judiciary, and the D.C. Circuit by examining whether Judge Sullivan’s conduct was appropriate.
Canon 2, entitled A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities, provides in section (A) that “[a] judge . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Notably, ABA Model Rule 2.10 prohibits judges from making public statements that might be expected to affect the outcome or fairness of the proceeding. Requiring a judge to respond to a challenge to his order could force him to take positions in defense of his actions that could potentially affect subsequent proceedings. Hiring counsel to respond on his behalf is an effective way to limit this risk: the Comment to Rule 2.10 states that “[d]epending upon the circumstances, the judge should consider whether it may be preferable for a third party, rather than the judge, to respond or issue statements in connection with allegations concerning the judge’s conduct in a matter.”
Canon 3 covers fairness, impartiality and diligence for federal judges. It provides that judges must decide cases without fear of criticism or public clamor. If a judge cannot preside over a case without the appearance of impropriety, he must disqualify himself and refer the case to another judge. Judges are used to explaining their reasoning in carefully written, independent opinions, not adversarial pleadings. The possibility of having to respond directly to a challenge to a judge’s ruling could implicate Canon 3’s concerns about not letting criticism and public clamor influence a judge’s decision-making.
Given the dynamics at play, the D.C. Circuit’s Order raises interesting questions not only regarding the power of appellate courts, but also regarding how a judge in Judge Sullivan’s position can respond and still honor the ethical canons designed to protect the integrity and propriety of the federal judiciary. And since Judge Sullivan’s response is due this month, we won’t have long to wait to see how the next chapter unfolds.
 Order Appointing Amicus Curiae, United States v. Flynn, No. 17-cr-00232-EGS (D.D.C. May 13, 2020), ECF No. 205; see generally https://www.washingtonpost.com/national-security/court-asks-retired-judge-to-fight-justice-dept-effort-to-drop-michael-flynn-case-and-examine-if-ex-trump-adviser-committed-perjury/2020/05/13/8c0deb0a-9567-11ea-82b4-c8db161ff6e5_story.html. Flynn was originally convicted of lying to the FBI, but the Justice Department’s current position is that the investigation in which Flynn was questioned was not legitimate. See generally https://www.washingtonpost.com/local/legal-issues/justice-dept-moves-to-void-michael-flynns-conviction-in-muellers-russia-probe/2020/05/07/9bd7885e-679d-11ea-b313-df458622c2cc_story.html.
 Fed. R. Crim. P. 48(a) (“The government may, with leave of court, dismiss an indictment, information, or complaint.” (emphasis added).)
 In re Michael T. Flynn, No. 20-5143 (D.C. Cir. May 19, 2020). Flynn argues that the District of Columbia’s local rules do not allow amici in criminal cases, and that Judge Sullivan’s discretion to deny the motion to withdraw is narrow notwithstanding the broad language in Rule 48.
 Per Curiam Order, In re Michael T. Flynn, No. 20-5143 (D.C. Cir. May 21, 2020), ECF No. 1843869 (ordering “the district judge [to] file a response addressing petitioner’s request that this court order the district judge to grant the government’s motion to dismiss”).
 See, e.g., Order List: 577 U.S. (Mar. 29, 2016), available at https://www.scotusblog.com/wp-content/uploads/2016/03/Zubik-order-6-29-15.pdf (ordering parties to submit supplemental briefs on additional questions of law).
 United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020).
 Brian P. Goldman, Note, Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 Stan. L. Rev. 907, 958 (2011).
 See Sineneng-Smith, 140 S. Ct. at 1582-83 (collecting cases in which Supreme Court appointed amicus to argue in support of trial court where prevailing party declined to defend it); see also Order, Chorley Enterprises, Inc. v. Dickey’s Barbecue Restaurants, Inc., No. 14-1799 (4th Cir. Feb. 27, 2015), ECF No. 47 (appointing counsel “to file an amicus brief and present oral argument in support of the district court’s determination” that certain questions must be decided by jury); Per Curiam Order, Maalouf v. Islamic Republic of Iran, No. 18-7052 (D.C. Cir. Oct. 1, 2018), ECF No. 1753285 (appointing amicus “to present arguments in support of the district court’s orders”).
 See Helen A. Anderson, Frenemies of the Court: The Many Faces of Amicus Curiae, 49 U. Rich. L. Rev. 361, 376 (2015) (noting Supreme Court use of court-appointed amici to defend lower-court decisions the parties do not support).
 Goldman, supra Note 7 at 924, 958.
 See Per Curiam Order, United States v. Fokker Servs. B.V., No. 15-3016 (D.C. Cir. May 5, 2015), ECF No. 1550697 (appointing amicus “to present arguments in favor of the district court’s . . . order”).
 Some scholars have expressed the view that all Article III judges—or at least non-Supreme Court Justices—are essentially co-equal. See Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 221 (1985), available at https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2026&context=fss_papers (discussing “structural parity of all Article III judicial officers”).
 Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-31 (1962)).
 28 U.S.C. § 1651(a).
 Kelly Kunsch, Standards of Review (State and Federal): A Primer, 18 Seattle U. L. Rev. 11, 15 (1994), available at https://digitalcommons.law.seattleu.edu/sulr/vol18/iss1/2/.
 Id. at 15 & 15 n.19.