Category Archives: current events

No Surprises, but still

For a “transactional” person like Donald Trump, life itself is about the necessity of “winning” every single “transaction”. Every imaginable interaction in life, by the way, can be seen a transaction — a business deal. His niece stated the obvious about the upbringing that brings about this kind of mentality in this excerpt from the book the Trump family has been in court trying to prevent the release of:

“Fred [Sr.] hated it when his oldest son [Fred Jr. –ed.] screwed up or failed to intuit what was required of him, but he hated it even more when, after being taken to task, Freddy apologized. ‘Sorry, Dad,'” Mary writes, adding that Fred Sr. would “mock” Freddy for apologizing.

“Fred wanted his oldest son to be a ‘killer.'”

Mary describes this incentive structure in the Trump household as having “destroyed” Donald Trump, with Fred Sr. leaving no room for emotions or vulnerability.

“That’s what sociopaths do: they co-opt others and use them toward their own ends — ruthlessly and efficiently, with no tolerance for dissent or resistance.”

source

Donald, the second youngest of five children of the sociopathic Fred Trump Sr., neither dissented from nor resisted his autocratic father’s demanding job description for him: win at any cost. The mythical “small million dollar loan” that Trump claims started his fabulously successful career as a billionaire businessman was calculated at $400,000,000 in today’s dollars (source: lying NY Times). Those hundreds of millions were provided by Fred Sr. over several decades to bail out his inept heir in the course of several huge business failures and bankruptcies. Who cares?

That’s why we have courts! Donald Trump is the most litigious man ever to become president of the United States. How many times has Trump been involved in litigation? Many, as plaintiff and defendant both. This no-doubt lying account claims he has been in court 4,095 times in the last three decades. When we say “he” we mean his legal team, of course.

Trump learned about the power a rich person can wield using the courts at an early age, from master of the dark art of weaponized lawsuits, the disgraced Roy Cohn. Cohn famously, and audaciously, counter-sued the US Department of Justice in 1973 when it brought a lawsuit, under the Fair Housing Act, to force the Trumps to integrate their federally subsidized apartment complexes. The outrageous accusation that this good American family was racist just because they didn’t rent to colored people was defamation! The case was tied up in court for years, by Cohn’s wrangling with the DOJ, until a settlement was worked out: the Trumps would allow federal inspectors to make sure the Trumps were following the law, but without any admission of wrongdoing from the Trumps. Trumps win!

The more than twenty lying women, with their vicious accusations right before the 2016 election that Trump was a transgressive, sexually aggressive pig — virtually every one of these liars a dog he wouldn’t rub against with Mike Pence’s putz, by the way — they would all be sued right after the election, Trump promised. Not one was. SO WHAT!?? All this senseless hatred for a man who won the election fair and square. Just jealousy.

Even many of Mr. Trump’s supporters can probably stipulate that Mr. Trump is a liar, a big one, a bad one, that he appears to have a compulsion to say whatever it is he thinks he needs to say to win a given “transaction.” It’s all just “business” these things of life are all just transactions, stories to be told persuasively to get what you need.

So if, for example, he’d been forced to fire his National Security Advisor for lying to his Vice President, and then that same man lied to the FBI and then cooperated with an illegal witch hunt started after his boss exercised his perfectly legal right to fire an FBI director who refused to be loyal and drop the case against the man… well, that’s what the law is for. To make ugly looking things like that go away.

His trust in his loyal, racist Attorney General Jeff Sessions was betrayed when Sessions followed the advice of DOJ Ethics lawyers and properly recused himself from supervising the Special Counsel’s investigation into a matter Sessions had been caught being untruthful about. There were many contacts between Russians and the Trump campaign, including by Sessions, and Russia, even the Republican Senate acknowledged, interfered in all 50 states during the election. Still — Sessions had to go for that betrayal of his boss, the transaction was completely unacceptable, left the president open for literally anything. Trump eventually found the incarnation of Roy Cohn in his current unprincipled Attorney General, Bill Barr, a man who had unscrupulously auditioned for the job, promising to protect the Unitary Executive no matter what charges were leveled against him.

If Comey had only made the “Flynn thing” go away, as Trump had asked, no need to appoint the Special Counsel, no need to document the 140 instances of coordination between Trump’s campaign and the Russians, no need to detail the ten specific acts of too close to call (if an OLC memo prevents charging a sitting president) obstruction of justice committed by the president whose lawyers insisted could neither be accused of, charged with or investigated for anything, while president.

“So are you saying the president could literally shoot somebody on Fifth Avenue and he couldn’t arrested or even investigated for the shooting?” asked an incredulous federal judge at one point during a another of the many hearings Trump’s lawyers initiated to delay resolution of relatively simple matters that their client would eventually lose on (delay is as good as victory in many lawsuits, we learn).

“Yes,” said Trump’s lawyer, with a straight face.

So, sure, the president’s assertion of a blanket immunity for everything he ever discussed with anyone, under any circumstances and all documents pertaining in any way to the president or his business affairs — not constitutional. The president’s insistence that he can’t be investigated, that nobody he knows can ever be compelled to obey a legally issued subpoena? Balderdash. And yet… he wins by dragging things out again and again, keeping things hidden.

His big idea is that once Flynn is free of charges for the crimes he committed and pleaded guilty to, crimes Barr now realizes were actually, likely, crimes committed against Flynn by Trump’s enemies, the Mueller witch hunt will be shown to be yet another piece of this criminal betrayal by his vicious, sick enemies. No Flynn guilt, no reason Comey shouldn’t have dropped the unfair, illegal case. No need to fire Comey, no special prosecutor witch hunt, no stain on his perfect presidency.

Today, big surprise, we get the sparing of longtime Trump ally Roger Stone, a man afraid of death if he was forced to report to prison for his 40 month sentence. Well, we can say this, Bill Barr, the president’s top legal advisor, has learned a few things from his own sordid history.

A pardon is an acknowledgment that the person being pardoned was guilty of what he was charged for. The pardoned person can later be compelled to come to court, or before the House or Senate, and be questioned under oath about the matters he was guilty of. All kinds of ugly, potentially dangerous details can come out. Commutation of a sentence, on the other hand, means that the details of the crimes of someone like Roger Stone are now protected by the Fifth Amendment, since without the pardon he can further incriminate himself about. Stone can never be compelled to utter a word about anything related to his crimes.

Dirty tricks committed by Stone, Wikileaks, Gucifer 2.0, Russia, on behalf of Mr. Trump’s campaign? Go jump in a lake. Tweets about the trial judge in his case featuring her face in the crosshairs of a rifle? Free speech, same as threats to witnesses against him. Parties he and his buddy attended at the sumptuous home of Jeffrey Epstein? Please…

Devils and darkness. As long as the darkness is complete, what goddamned devils are you even talking about, man? And, beyond that– so what?!

Pandemic Learning

This worldwide outbreak of an incurable disease is disorienting. Nobody alive has any living experience with the last one, which was over a hundred years ago. You’d have to be 110 to remember much, and little was known back then, except, in hindsight, that a deliberate lack of good information increased the spread of the deadly plague. So today we are are trying to learn, slowly, how to operate during this hellish time of social isolation against the backdrop of a disease that has killed over 130,000 of us here in the United States of America so far. Here is something I learned yesterday that seems useful.

Get up every so often and move for five or ten minutes, throughout the day. It actually makes you feel better than sitting around for hours at a stretch.

I have a fitbit pedometer clipped to my shirt. I try to get my 10,000 steps a day and come pretty close most days. I walk after the sun goes down, since I’ve had numerous skin cancers scalpeled off my nose. I walk my five miles during the coolest time of the summer day. This little pedometer keeps track of another stat: active minutes and when you are logging them. Here is what I learned.

One of the bits of data you get at the end of the week is how many hours, during the average person’s 9 active hours per day, you have moved at least 250 steps. That’s a walk of three or four minutes. I consistently score 2 of 9 hours daily, correlating with my evening walks. That means for 7 hours of the day, I am sedentary, for no real reason except inertia.

I have been feeling a lack of energy lately, a certain resignation to everything stagnant in my life, powerless against every powerfully destructive force we are up against, a wave of futility kept washing over me. I write, read and watched news clips but I am constantly distracted, seeking distraction during my distractions. I took no joy in drawing, practicing calligraphy, playing the guitar, hadn’t picked up a ukulele in days. Yesterday it hit me: take a little walk.

I went around the block, then down the street, strolled for ten minutes or so. Came back up to the computer and continued to brood. An hour later, back down, around the block, sat on a bench. I’m in an area where there are few people on the street, so I carry a mask that I slip on to avoid infecting anybody I see approaching, though it is unlikely I have this sneaky disease that can be spread by people with no symptoms.

These little bursts of light exercise really seem to help, even just a little. A little bit of help is nothing to sneeze at when you’re feeling helpless.

I’m going to put my shoes on and walk for a few minutes now, if you will please excuse me. I highly recommend it (walking and excusing me, both).

Why Isn’t Every Democrat in America Saying These Things now?

contrast these humane views of our history, our present and our future with these wildly applauded, incoherent phrases:


We have to cherish our past. We have to cherish good or bad. We have to understand our past. We have to understand our history. Because if we don’t know our history, it could all happen again. We have to know our history.

— President Donald J. Trump June 23, 2020

source

He always shows his true colors!

One thing you have to say for our compulsively lying president, he manages to always show what he really believes, even when he tries not to. It’s a kind of involuntarily brutal honesty, if you will.

Right after he had Bill Barr viciously clear out peaceful protesters so he could walk to a nearby church to glare and hold up a Bible, the mayor of DC had workers paint BLACK LIVES MATTER in giant yellow letters on the street where he staged his religious tableau. Mayor Muriel Bowser also renamed the street Trump had walked on “Black Lives Matter Plaza”.

The other day NYC mayor Bill de Blasio announced that NYC would be painting a gigantic BLACK LIVES MATTER on Fifth Avenue in front of Trump Tower. The president was quick to respond with this clever, soul-revealing line, delivered by tweet:

(the mayor) … is going to paint a big, expensive, yellow Black Lives Matter sign on Fifth Avenue, denigrating this luxury Avenue.

You get that word choice, right, from the man with the vocabulary of the average fifth grader (this is the guy with the “best words” — the one who parsed a legal requirement recently as “hortatory rather than mandatory” as someone told him to do) deNIGrating, you get it? de-NIG-grating. Clever, eh?

Just in case you missed how he really feels, he added:

Maybe our GREAT Police, who have been neutralized and scorned by a mayor who hates & disrespects them, won’t let this symbol of hate be affixed to New York’s greatest street.

BLACK LIVES MATTER– symbol of hate. Statue of generals who took up arms in the bloody insurrection against our nation — symbol of our glorious history. After all, as the president said (in the lead up to his death cult vigil in front of Mount Rushmore tomorrow, to celebrate the signing of the Declaration of Independence):

We have to cherish our past. We have to cherish good or bad. We have to understand our past. We have to understand our history. Because if we don’t know our history, it could all happen again. We have to know our history.

Greatest president EVER, yo. Certainly the most very stable genius ever to rule from the Oval Office.

Follow the Judicial Logic, if you can

A few last words on Judge Rao’s ideologically-driven decision on Flynn’s emergency application for immediate dismissal of the case against him. I can’t let this one go, because, as Federalist Society spokesman and former Boeing lawyer Judge J. Michael Luttig wrote in the NY Times the other day, this case is “the most consequential political constitutional case in recent memory.” True dat.

Judge Rao’s legally legless 2-1 decision takes a historically destructive position, like the most notorious of our cases. In this “not unusual” case she rules that the requirements of the law must yield to even the most seemingly irrational, partisan demands of a powerful president.

See if you can follow the logic of former law professor Noemi Rao (appointed by the current president to fill the seat left vacant when B. Kavanuagh was promoted):

Whatever the precise scope of Rule 48’s “leave of court” requirement [court decides when and how to dismiss case — ed.], this is plainly not the rare case where further judicial inquiry is warranted.

Nothing rare here, “plainly not”? Defendant admits guilt and then DOJ, two years later decides that what he pleaded guilty to was not actually a crime? Is there one other case in this category in anyone’s memory?

Because legal errors ordinarily may be corrected on appeal, a writ of mandamus is proper only if there is “no other adequate means to attain … relief.” Cheney, 542 U.S. at 380. Although “an abstract concern with the separation of powers,” does not rise to the level of an irreparable injury, In re Al Nashiri, 791 F.3d 71, 79–81 (D.C. Cir. 2015), we have found the requisite harm as a matter of course when a party alleges the district court’s action usurps a specific executive power. See In re Cheney, 406 F.3d 723, 731 (D.C. Cir. 2005) (en banc); Fokker Servs., 818 F.3d at 749; Cobell v. Norton,
334 F.3d 1128, 1139–40 (D.C. Cir. 2003); In re Sealed Case No. 98-3077, 151 F.3d 1059, 1065–66 (D.C. Cir. 1998).

In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Newman, 382 F.2d at 481 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)). Thus, the district court’s appointment of the amicus and demonstrated intent to
scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.

So because Flynn’s lawyer, in asking for this rare, emergency relief, alleges that harm to the Executive Branch will be grievous and irredeemable, we must grant a no appeal decision to Flynn, no matter what the other facts of this highly unusual case?

We must also assure ourselves that issuance of the writ “is appropriate under the circumstances.” Cheney, 542 U.S. at 381. The circumstances of this case demonstrate that mandamus is appropriate to prevent the judicial usurpation of executive power.

Here the harm alleged, “usurpation of executive power,” is to the government, not to Flynn, the party making the emergency application for extraordinary relief. Flynn, the one seeking the emergency decree (with the legal support of Mitch McConnell, Lindsey Graham, Ted Cruz, et al) has an appeal available, if the trial judge tries to do something beyond the scope of the court. That fact alone rules out the extraordinary relief Judge Rao grants to Flynn.

Finally, each of our three coequal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in
the interest of justice.

This president, in particular, has demonstrated his readiness to self-correct. Obviously. He does this by doubling down, attacking critics, firing whistleblowers and watchdogs, vilifying them as disloyal traitors, stupid idiots, sick, dangerous, crooked, little, insane, smelly, “dumb as a bag of rocks,” while obstructing all investigations and so forth. Like any self-correcting branch of government will do.

Because this is not the unusual case where a more searching inquiry is justified, and because there is no adequate remedy for the intrusion on “the Executive’s long-settled primacy over charging decisions,” Fokker Servs., 818 F.3d at 743, we grant the petition for mandamus in part and order the
district court to grant the government’s Rule 48(a) motion to dismiss the charges against Flynn.

Not the unusual case? Judge Rao rules for the benefit of a party not in court, the Executive Branch — that alone is kind of unusual. Flynn has the usual right of appeal, which, again, means he is not eligible for the extraordinary legal remedy of mandamus. So what, reasons Judge Rao, if the moving party has no right to what the court seeks to grant, what about POOR UNFAIRLY PERSECUTED MR. TRUMP?!!! Poor Mr. Barr!!!

Not the unusual case, you dig. Nothing to see here! Fokker! Fokker!!!

I really wanted to end there, but this bit from her response to the excellent and legally impeccable dissent is worth reading:

First, the dissent glosses over the presumption of regularity to which the Executive is entitled in the exercise of its prosecutorial discretion. While the district court is not a “rubber stamp” when considering whether to grant “leave of court” under Rule 48, Ammidown, 497 F.2d at 622, any judicial inquiry is strictly bounded by the presumption of regularity, and the presumption is overcome only in extraordinary cases and by “clear evidence to the contrary,” Armstrong, 517 U.S. at 464.

Here, while forcing a judge to “rubber stamp” a motion he doesn’t like the smell of, there will be, pursuant to the writ of mandamus, no clear evidence of anything, outside of the government’s sudden, irrefutable insistence that a guilty man committed no triable crime, will be permitted. Just like in Trump’s impeachment– no evidence allowed! No hearing whatsoever will be allowed prior to “leave of the court” to dismiss the case as ordered by a superior court. How you like that Catch-22?

Not the unusual case, you dig. Nothing to see here! Fokker! Fokker!!!

Letter to the editor

To the editor

re: J. Michael Luttig, How The Court Bungled the Michael Flynn Case


J. Michael Luttig follows his analysis of Judge Rao’s controversial decision in “the most consequential political constitutional case in recent memory” by warning that overturning the clearly incorrect ruling “would only further politicize the already politicized case.”    He details how Judge Rao failed to address any of the three required legal conditions for shutting down Judge Sullivan’s hearing and ruled for a party that was not even in court (the “bungle” in his title), but urges the Court of Appeals to avoid a “three-ring judicial circus” that “would exact an almost unconscionable price from the integrity of the judicial process.”


The former judge gives away the game in clinching his argument: “The government’s facially [sic] and unrebutted reasons for wanting to dismiss the prosecution — namely that the government itself wrongly investigated and prosecuted Mr. Flynn in the first place and then withheld exculpatory evidence from him in the second place — are constitutionally compelling.” 

With respect for Judge Luttig, what is “constitutionally compelling” is for the courts, not the Unitary Executive, to decide.

(174 words — the Grey Lady wants letters between 150 and 175 words)

It took a night of sleep to cut it down from this more detailed, didactic and bulbous version:

J. Michael Luttig’s excellent legal analysis of the egregious flaws in Judge Rao’s legal analysis in the controversial 2-1 in re Flynn opinion, is undermined by his advocacy for allowing the incorrect ruling to stand, because a rehearing “would only further politicize the already politicized case.”


He sets out the three simple legal questions that must be answered before a judge may order the extraordinary remedy of mandamus — in this case forcing another court to rule without holding a hearing.   He points out specifically how Judge Rao’s ruling left all three required questions unanswered.   Then, in laying out the pros and cons of a review by the full court,  warns of the extreme danger of overturning this clearly mistaken holding, in a unique case he correctly describes as “the most consequential political constitutional case in recent memory.”.  He cannot have it both ways.


Mr. Luttig opines that an en banc rehearing of even this grievously wrong ruling (the “bungle” his title refers to) would lead to a “three-ring judicial circus” that “would exact an almost unconscionable price from the integrity of the judicial process.” In other words, a ruling that is plainly wrong must be left to stand to avoid politicizing the judiciary, even in the special case of an inexcusable, seemingly ideologically-driven judicial error.   

Judge Rao ordered Judge Sullivan to immediately dismiss the Flynn case on the grounds that Judge Sullivan, by holding a hearing before granting the DOJ motion to dismiss, was “usurping” the powers of the Executive Branch. Judge Rao’s decision, as Mr. Luttig explains clearly, established none of the conditions necessary to grant the rare emergency relief that Flynn’s lawyer’s sought.   This is because none of the reasons apply to this case. Unaccountably, Mr. Luttig argues that the Court of Appeals would be wise to steer clear of reviewing the case, as Judge Sullivan is entitled to have them do.

The NY Times is dedicated to presenting a diversity of opinions. Still, this op-ed is advocacy for why Bill Barr’s DOJ is entitled to this rare deference and judicial intervention to protect its legal reasoning from the sunlight of a hearing (on a motion made by Flynn’s lawyers, ruling for the DOJ, a nonparty).  As Mr. Luttig states, in clinching his argument: “The government’s facially [sic] and unrebutted reasons for wanting to dismiss the prosecution — namely that the government itself wrongly investigated and prosecuted Mr. Flynn in the first place and then withheld exculpatory evidence from him in the second place — are constitutionally compelling.” 

With respect for Judge Luttig, what is “constitutionally compelling” is for the courts to decide.

(There was no space to add that J. Michael Luttig, former clerk for Antonin Scalia, ardent supporter of the Federalist Society, Bill Barr’s successor in H.W. Bush’s Office of Legal Counsel, conservative federal judge from the age of 37, longtime lawyer for the CEO of Boeing (who retired in the midst of Boeing’s recent deadly scandal) is a lifelong right-wing political operative. Big surprise that he support’s Bill Barr’s position that among the three co-equal branches in our “checks and balances” system, the Executive is by far the most powerful.)

Federalist Society 101

This October 2001 article, Movin’ On Up with the Federalist Society: How the right rears its young lawyers, describing the workings of the then less than twenty year old Federalist Society, should be read by everyone who wants to understand how Trumpism came to triumph in America. A remarkable piece of reporting by Amy Bach in The Nation. Here is a taste:

Federalism, in its most basic form, is the idea that the federal government shouldn’t encroach on the powers that the Constitution allegedly has reserved to the states. But the Federalist Society is an umbrella organization embracing all right-wing causes. Some members favor libertarian principles of individual rights over “big government”; others advocate strict-constructionist interpretations of the Constitution, which they claim represent the framers’ intent. Whatever legal justification is offered to ground these views, the Federalist ideology is in effect a tool to eviscerate Congressional efforts to advance public policy goals where the states have failed. As critics point out, it benefits big business, it’s anti-egalitarian, it shuts plaintiffs like the poor and disabled out of the courts, and it rolls back the New Deal notion that the courts have a role to play in helping the downtrodden. While the legal theories may appear tidy, they lack compassion, working to support favorite sons like gun manufacturers and HMOs.

Federalist arguments include: Sexual-harassment and gender-equality laws impose illegitimate burdens on business; the powers of the Environmental Protection Agency should be exercised by the free market or, at most, by local or state government; juries are too unpredictable to be given the power to award punitive damages against large corporations but legitimate enough to be empowered to impose the death penalty; welfare laws by and large should be repealed; hate crimes are not a separate and more reprehensible category of criminal behavior than crimes not motivated by animus toward people of different races or sexual orientation; and the right of the people to keep and bear arms means empowering individuals to take up arms, not just preserving organized state-based militias.

However, the Federalist Society claims it takes no positions on issues. With its tax-exempt status requiring it to stay away from political activity, it hides behind the notion that it is merely a sophisticated speakers’ bureau. “We are not a position-taking organization,” Eugene Meyer, the society’s executive director, told the Washington Post. (Meyer declined to comment for this story.) “We really are interested in discussion and in getting ideas heard.” Even Judge Kozinski, a fairly ubiquitous presence at national events, won’t say that he’s a card-carrying member. “I’m on the mailing lists,” he says. “And whether I attend depends on whether it is something I am interested in.” The conservative intelligentsia repeats these lines again and again, as if afraid to say the obvious for fear it will reveal their true agenda. Meanwhile, under the dispassionate guise of a debating organization, the Federalist Society is working to prepare a powerful next generation of conservative corporate lawyers, judges, top government officials and decision-makers committed to fundamental change.

Oh, my. Read the whole article, learn a little history. Learn it as if our delicate experiment in democracy hangs in the balance.

Excellent Legal Analysis, then a blandly partisan political conclusion

The New York Times published an op-ed by J. Michael Luttig, a former federal judge, headlined How The Court Bungled the Michael Flynn Case. It provides an excellent legal analysis of the egregious flaws in Judge Rao’s legal analysis in a controversial 2-1 opinion that reaches none of the required legal points in ordering immediate dismissal of the Flynn case without a hearing. The op-ed also provides a prime example of the importance of knowing who is writing what you are reading. In the internet age, you don’t have to dig far to find out that Luttig, wealthy longtime Boeing lawyer, is a lifelong right-wing idealist [1].

Luttig concludes, after his precise legal analysis, while purporting to weigh the benefits of reversing this clearly wrong opinion in “perhaps the most consequential political constitutional case in recent memory,” that there is really no harm/no foul in letting the ruling stand, since the incorrectly decided opinion, ordering immediate dismissal of a case the Court “bungled” (in dismissing the case) will never be a precedent since it was idiotically decided. Fair is fair, concludes Luttig, in assessing whether the Court should rehear and reverse the clearly wrong decision. Rehearing and reversing, he writes:

… would only further politicize the already politicized case and the federal judiciary along with it. Prolonging what would then be a three-ring judicial circus would exact an almost unconscionable price from the integrity of the judicial process...

… The government’s facially [sic] and unrebutted reasons for wanting to dismiss the prosecution — namely that the government itself wrongly investigated and prosecuted Mr. Flynn in the first place and then withheld exculpatory evidence from him in the second place — are constitutionally compelling.

The Times, as you know, is dedicated to presenting a diversity of opinion. This is a fine example of a diverse opinion blandly affirming Bill Barr’s unassailable point of view (Barr was Luttig’s immediate predecessor at H.W. Bush’s Office of Legal Counsel), dangerously contextualized by an intelligent and fair critique of a grievously erroneous Court of Appeals decision, rehearing of which would:

unavoidably be perceived by many as the court’s positioning itself to rule for the losing side in last week’s case, evening the political score in this pitched partisan battle. This would only further politicize the already politicized case and the federal judiciary along with it.

God forbid the federal judiciary ever be politicized!

We should also note that the “losing side” is entirely, indisputably correct, from a legal point of view, which Luttig silently acknowledges. Only a Trump appointee could have written the ruling Judge Rao did, contorting herself to support the Unitary Executive above all other legal considerations.

As a threshold matter– yes, in the end Judge Sullivan will have to dismiss the case against Flynn if the DOJ belatedly decides its prosecution was “not in the interests of justice.” The DC Court of Appeals ruled 2-1 (incorrectly, in Luttig’s and virtually every other lawyer’s analysis) that Sullivan must immediately dismiss the case without a hearing. The ruling offered no legal reason for this extraordinary remedy except for “irreparable harm” to the prerogatives of the Executive Branch if the judge was allowed to “usurp” its powers by holding any kind of hearing prior to dismissing the case the DOJ now seeks to immediately end, with prejudice, “in the interests of justice”.

Luttig analyzes the fatal flaws of Judge Rao’s opinion:

In considering Mr. Flynn’s request, the appeals court had before it three simple questions: Does Mr. Flynn have a clear and indisputable right to have his case dismissed — before Judge Sullivan rules? Does he have any other remedy for the harm he may suffer if the case is not dismissed immediately? And last, is ending Mr. Flynn’s prosecution now, before Judge Sullivan rules, “appropriate under the circumstances”?

As it turns out, the Court of Appeals panel decided none of these three questions.

And, spoiler alert, the answer to the first is no, the answer to the second is yes, the answer to the third is no. The law requires: yes, no and yes in answer to these three simple questions before a writ of mandamus may be granted. Luttig:

Take the first question. Though it purports to have done so, the court did not decide that Mr. Flynn had a clear and indisputable right to immediate dismissal. Rather, the divided court decided the entirely different question of whether the government would have had a clear and indisputable right to have its prosecution dismissed immediately. “The circumstances of this case demonstrate,” Judge Neomi Rao wrote, that immediate dismissal “is appropriate to prevent the judicial usurpation of executive power.” However, it was not the government that asked the appeals court to dismiss Mr. Flynn’s prosecution before Judge Sullivan ruled. It was Mr. Flynn.

Luttig analyzes how consideration of the other two issues the court must weigh are also absent from Judge Rao’s decision, which ultimately rules in favor of a party (the Executive Branch) that was not even in court seeking the extraordinary legal relief she ordered for Michael Flynn.

Luttig then goes on to weigh the compelling reasons to rehear and not to rehear arguments in a wrongly decided case. As turns out, Luttig concludes there is really no compelling reason to allow a judge to hold a hearing when Bill Barr says everything was done on the up and up and that Flynn’s plea to the charges brought by Mueller is now a nullity under the law since Barr recently concluded Flynn’s actions did not constitute “material” lies or omissions made with any intent to obstruct Mueller’s unfair witch hunt, which began in Obama’s “spying.” Things that Barr has ordered criminal investigation into the “oringes” of.

It is fair to say, whatever your political views, that dismissal of Flynn’s guilty plea without a hearing confers an advantage on those who stand to gain by a dismissal in the dark without evidence of why the government suddenly dropped a case against a man who pleaded guilty to multiple felonies involving the Trump campaign’s well-documented Russian help in the 2016 election. Flynn, Trump’s senior campaign advisor (led “Lock her Up!” chants at the RNC) and the shortest serving National Security Advisor in history, recall, was fired for lying to Vice President Pence about Flynn’s illegal contacts with Russian officials during the transition period. Flynn pleaded guilty to lying to the FBI — in covering up connections between the Trump campaign and Russia — as well as to lies and omissions on his security clearance registration forms where he did not disclose a major conflict of interest: his work for the Turkish government [2].

Luttig:

Knowingly or not, the Court of Appeals simply appears to have bungled perhaps the most consequential political constitutional case in recent memory.

Every day, courts err and often even grievously. That said, the question now is whether the entire Court of Appeals will or should rehear this significant constitutional case.

A difficult decision for the DC Court of Appeals, he writes, one that, if decided with political bias (or not), could only make Bill Barr’s life much harder than it already is, not to mention the life of the occasionally mendacious (but not materially so) General Flynn and those many supporters of the Unitary Executive who support him.





[1] Reading Luttig’s CV afterwards I understood why the then youngest man ever appointed to the federal bench (37) and former Executive Vice President, Counselor and Advisor to the Board of Directors at Boeing (who made $3,463,793 in 2019) would likely come to this conclusion:

Though each judge receives hundreds of applications, a few conservative judges seek out Federalists. Judge Michael Luttig on the Court of Appeals for the Fourth Circuit, for example, hires only students with membership in the Federalist Society or comparable credentials on their resumes. And almost all of Judge Luttig’s clerks go on to clerkships at the Supreme Court. His unheard-of batting average is sustained because Judge Luttig diverts clerks who don’t land a clerkship with other Justices to Justice Scalia (whom Luttig himself clerked for) and Justice Clarence Thomas. Justice Kennedy interviews applicants based on recommendations from a group of Federalist-friendly professors and Judge Kozinski, himself a former Kennedy clerk. Judge Kozinski stresses, however, that Federalist Society membership is only one factor. “If you are suggesting that it gets people jobs it’s simply not true,” Judge Kozinski says. “It’s like saying you’re in the Boy Scouts.”

[although, coincidentally, they only hire Boy Scouts.]

source (excellent article about the Federalist Society)

Wikipedia:

On April 23, 1991, President George H. W. Bush nominated Luttig to fill a newly created seat on the United States Court of Appeals for the Fourth Circuit. Confirmed by the United States Senate on July 26, 1991 and receiving his commission on August 2, 1991, he became the youngest judge (at age 37) on a federal appeals court at the time of his appointment.[7]

[2]