An affirmation of hope — and faith in the rule of law

Another piece of hope-affirming news, and it helps to look at each one closely in these roiling times, for strength and resolve in the days ahead:

Appeals Court Erases Order to End Michael Flynn Case, Sets New Arguments

As a lawyer, this means a lot to me — and I read the decision carefully at the time. The decision federal appeals Judge Neomi Rao (Trump appointee 2019 — chosen off the Federalist Society list) wrote ordering Judge Emmett Sullivan to immediately dismiss the case against Michael Flynn was legally incoherent; it ignored the central question of law she was required to answer. The full court vacated her order yesterday — poof! The dissenting judge in Judge Rao’s 2-1 ruling was 100% right and pointed out the incoherence of Judge Rao’s decision clearly. The full DC Appeals court asked for briefs and arguments on August 11, 2020 from Flynn and the DOJ to show the dissent was wrong (it wasn’t).

The rule of law sometimes wins out — Trump almost always loses in court– though the system allows him to endlessly delay complying with the court using borderline frivolous appeals, as he’s done since he drank in the legal stalling tactic from Roy Cohn’s withered tit back in the 1970s. In the end, Judge Sullivan may have to dismiss Flynn’s case, but not before unpacking a lot more about the sudden about face by the DOJ and how it worked closely with Flynn’s defense team — also, possible perjury or contempt charges against the “good man” Flynn for swearing he lied to the FBI (and on his security clearance application where he hid his paid work for Turkey) and then swearing he never lied.

Barr wants to nullify Flynn’s charges to underscore that the whole Mueller probe (the criminal “Russiagate” witch hunt HOAX) was a house of cards, without any legal predicate, built on vicious Never-Trumper lies and treacherous Obama spies. If Barr can throw out every prosecution Mueller brought, while investigating the investigators in what he calls a “travesty” launched with criminal intent — nothing to see! No grounds for the illegal impeachment either!

Bravo to Emmett Sullivan for calling bullshit and standing his ground! Bravo to Merrick Garland and the rest of the judges of the United States Court of Appeals for the District of Columbia Circuit for vacating Judge Rao’s order and setting a hearing to decide the case based on the law.

Law still matters in the United States of America, until it doesn’t — then we live in a one-party state where the law can be constantly tweaked by unscrupulous partisans lawyers like Barr to make every abuse instantly legal, where the infallible, all-powerful leader truly can rule by fiat, by tweet, where, as in Trump and Barr’s dream for the USA, führerworte haben Gesetzeskraft! (the leader’s word has the force of law).

In a democracy, even with a Federalist Society [1] judge on every seat on the federal judiciary (they are currently about 193 more on the federal bench, after McConnell’s heroics), there are still certain legal principles that can’t be ignored or simply brushed aside. Even by diehard partisan fanatics who want to ignore them. The law still forces them to rule a certain way most of the time.

Case in point, this op-ed in yesterday’s New York Times by one of the founders of the extreme right-wing Federalist Society that has been untiring in its efforts to make the US a one-party state. The op-ed is entitled “Trump Might Try To Postpone the Election. That’s Unconstitutional.”:

I have voted Republican in every presidential election since 1980, including voting for Donald Trump in 2016. I wrote op-eds and a law review article protesting what I believe was an unconstitutional investigation by Robert Mueller. I also wrote an op-ed opposing President Trump’s impeachment.

But I am frankly appalled by the president’s recent tweet seeking to postpone the November election. Until recently, I had taken as political hyperbole the Democrats’ assertion that President Trump is a fascist. But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.

[1] Donors to the Federalist Society have included Google, Chevron, Charles G. and David H. Koch; the family foundation of Richard Mellon Scaife; and the Mercer family. By 2017, the Federalist Society had $20 million in annual revenue.

Prominent Members of the Federalist Society:

  1. ^ Roberts was at one point reported to have been a member of the society, but Roberts’s membership status was never definitively established. Deputy White House press secretary Dana Perino said Roberts “has no recollection of ever being a member.”[40] Following the report, the Washington Post located the Federalist Society Lawyers Division Leadership Directory, 1997–1998, which listed Roberts as a member of the Washington chapter steering committee;[41] however, membership in the society is not a necessary condition for being listed in its leadership directory.[41]

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