Applying the Martha Kavanaugh Judicial Sniff Test to the Flynn case

Let us look at a recent 2-1 pro-Trump decision (ordering immediate dismissal of all charges against Mike “Lock Her Up!” Flynn), written by a recent Trump appointee, and apply what Martha Kavanaugh, the Supreme Court justice’s mother, a judge, famously taught her son:  use common sense.  Does it smell right or does it smell bad?   Who stands to gain?   Who has the motive to break the law or lie?

In ordering an immediate end to any inquiry into why the DOJ made a sudden motion to dismiss a case against a man who admitted to multiple felonies in a plea deal, Judge Noemi Rao concluded that the highly unusual judicial intervention called mandamus (a court ordering a powerful entity to do something immediately) was required in a case that she wrote was “not unusual”.

The reasons she gave for this extraordinary step being necessary were based on a “separation of powers” argument , following the ideological Federalist Society position favoring a powerful Unitary Executive (as long as he is faithful to an extreme conservative agenda). All decisions by the Executive Branch, she wrote (like an abrupt about-face in a prosecution where it secured a guilty plea), are entitled to deference from the courts under the Presumption of Regularity (the presumption that the law is being faithfully carried out). To allow a federal judge to hold a hearing into the reasons for the government’s sudden determination to drop all charges against a defendant who has already pleaded guilty, twice, is, according to Judge Rao’s ruling, an impermissible usurpation of the president’s power. Of the three co-equal branches of government, under this theory, the Executive Branch is the most powerful.

How does that legal reasoning smell to you?

Then we have the dissent, artfully argued by Judge Robert Wilkins. He points out that the extraordinary, emergency measure of ordering a judge to immediately cancel a hearing and rule in favor of one party may only be done under rare, specific circumstances. He sets out the three part legal test that must be evaluated before a court may grant an application for a writ of mandamus. He points out that all three factors must be met in order to grant this rare form of legal relief. Then he shows that none of these three conditions have been met in the Flynn case.

The most obvious of the three is the requirement that the person requesting this rare, emergency intervention must have no other legal option. In this case, if the judge (Emmet Sullivan) holds a hearing and rules against defendant Flynn, a standard appeal is available to Mr. Flynn. Just like in every other”not unusual” case of this kind.

So on the one hand we have an ideologically pure judge loyally ruling that in this “not unusual” case the extraordinary legal remedy of mandamus is required. On the other hand, we have a presumption that the law requires what the law actually requires and that exceptions must only be made if they pass a stringent legal test. Judge Rao’s answer to why Flynn’s motion passed this stringent test is, by the looks of her learned legal reasoning, “2-1, yo. Boss wins.”

Judge Sullivan, hauled into the Court of Appeals on an “emergency” motion by Flynn’s lawyer and a large group of prominent Republican “friends of the court” in an attempt to stop a scheduled hearing and force him to sign off on the sudden dismissal without a hearing, is not following this “emergency” order. He is within his rights to have the order reviewed by the entire DC Court of Appeals, a legal remedy he immediately sought. It is unlikely that Judge Rao’s order will be upheld by the entire group of DC Court of Appeals judges.

When her decision is overturned, Flynn and this large group of prominent Republican “friends of the court” [1] will use the same legal remedy currently available to Mr. Flynn in this not unusual case, appeal this ruling to Martha Kavanaugh’s son and his eight unappealable lifetime colleagues on the Supreme Court.

We will not hear the end of this Flynn case until well after the 2020 election. My prediction is that, particularly if Trump meets H.W. Bush’s fate in his reelection attempt, Barr will make the Flynn case moot by orchestrating another premature pardon (a la Caspar Weinberger of Iran-Contragate fame) of Mr. Trump’s dear friend, the loyal Mr. Flynn who also, mind-bogglingly, cooperated with the rat Robert Mueller III during Mueller’s notorious witch hunt, a partisan hoax which, incidentally, according to Bill Barr, completely exonerated the illegally spied upon, criminally persecuted president.

How does this all smell to y’all?

Let us not even consider the odor of the recent abrupt no-cause firing of Geoffrey Berman, the until recently sitting US Attorney for the Southern District of New York. Trump appointee Berman had prosecuted Trump allies unfairly singled out by Mueller and was heading several investigations into Trump and his family that could be very embarrassing to the very private Mr. Trump, particularly as he is fighting to be elected to a second term. Barr offered Berman a promotion, to head of the entire DOJ Civil Division, if Berman would step aside to allow Mr. Trump’s new pick, Jay Clayton, currently Trump appointee overseeing regulation of the financial industry, to take over as head prosecutor in the Southern District of New York. The proposed new head prosecutor has no prosecutorial experience, but, as the president says “talent is more important than experience”. There is one talent alone that Mr. Trump prizes. Mr. Barr has agreed to display this talent before the House Judiciary Committee on July 28th.

So, Berman is offered a promotion by Barr, he declines, he is terminated with no cause given, Barr claiming in a Friday evening news release that Berman resigned. Berman responds with a written statement saying that he has not resigned and has no intention of resigning. He points out that as a judicial appointment (Trump put him in office as acting US Attorney and made no move to have him confirmed in the legal timeframe, leading to the judicial appointment) only the president may fire him. Barr says, fine, Trump says you’re fired, asshole. Trump: I wasn’t involved.

I, for one, am looking forward to the religious, fervently monarchist bully Bagpiper Bill Barr’s sworn testimony/tapdance on July 28 — and, anyway, what’s the rush to clear his good name of the further stink of this Berman kerfuffle, in context of his many, ongoing, dodgy dealings and untruthful pronouncements as the nation’s top law enforcement official as he demonstrates his fervent devotion to the most infallible and important man in America?

How does this all smell to you, boys and girls? All cool under the sacred “presumption of regularity?” If so, (and you have a law degree) you might be ready for the federal bench!




[1] These prominent Republicans include, among others, the Solicitor General of the United States and the Attorneys General of Ohio, Alabama, Alaska, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, Utah and West Virginia. Also on the side of petitioner Flynn were former United States Attorney General Edwin Meese III and Conservative Legal Defense and Education Fund and eleven Republican members of the House. Also heard from for petitioner Flynn on immediate, extraordinary court-enforced dismissal of this “not unusual case” were Majority Leader Mitch McConnell and Senators Tom Cotton, Mike Braun, Kevin Cramer, Ted Cruz, Charles E. Grassley, and Rick Scott.

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