Judicial Impartiality and the Extrajudicial Divide

The criminal prosecution of former National Security Advisor Michael T. Flynn arising out of his surreptitious contacts with Russian Ambassador Sergey Kislyak before President Trump assumed office was controversial in many respects. The case received extraordinary publicity. A key aspect of the case that received little attention, however, was Flynn’s effort to have the D.C. Circuit Court of Appeals wrest his case away from U.S. District Judge Emmet Sullivan based on the judge’s alleged hostility toward him. Judge Sullivan, who would have sentenced Flynn for his admitted crime but for President Trump’s pardon, had harshly criticized Flynn’s conduct in open court. Flynn desperately did not want to be sentenced by Judge Sullivan. Flynn’s effort to disqualify Judge Sullivan rightly failed, however, because the judge’s alleged partiality was rooted in the facts of the case, and his comments that supposedly evidenced his antagonism toward Flynn reflected opinions he formed during the proceedings. In sum, there was no extrajudicial basis to disqualify Judge Sullivan.

The necessity of an extrajudicial source to disqualify a judge for alleged bias or partiality is a settled aspect of judicial ethics. The extrajudicial source doctrine generally insulates judges against disqualification for a real or perceived lack of impartiality grounded in the performance of their judicial duties. The doctrine rests on the principle that an extrajudicial source of partiality normally is necessary to disqualify a judge because judges will naturally form opinions and conclusions about parties and their claims during litigation, and no reasonable person with full knowledge of the facts would correspondingly doubt their impartiality. Yet, there are times when judges’ impartiality may reasonably be questioned based on actions taken, rulings made, knowledge gained, or opinions formed during proceedings. Long story short, judges can, in fact, be disqualified for alleged partiality with “intrajudicial” roots. The standard to disqualify judges based on intrajudical factors, however, is difficult to satisfy.

Judges’ possible disqualification based on intrajudicial factors is a critical issue for courts and for trial and appellate lawyers, yet it has escaped scholarly attention. This article fills that void. The article uses General Flynn’s case as a teaching tool to highlight and explain in a useful fashion judges’ disqualification based on alleged intrajudicial bias or partiality.

a. Managing Director, Aon Professional Services, Olathe, Kansas. J.D., University of Kansas. Opinions expressed here are the author’s alone.

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