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.

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]

Shameless Bagpiper Bill Barr Needs to Go Home

Full disclosure, I personally hate this pugnacious, lawless, lying, culture war prosecuting handmaiden to the infallible Unitary Executive, the current exemplar of which is, demonstrably, the worst president in American history. I will, therefore, turn this post over to more cool-headed sources, that you might see the seriousness of what we’re up against having an essentially lawless man in charge of “Law and Order”, unaccountably carrying out the vindictive will of a thin-skinned idiot who has never taken responsibility for any of his many serious errors, omissions, frauds, crimes, etc.

Here is a nice snapshot of some of Barr’s more egregious abuses of power (though it omits, for example, Barr’s inappropriate military command of the violent clearing of peaceful protesters for the president’s Bible holding stunt in front of the church):

Congress must continue to pursue this matter [the recent whistleblower revelations about coercive political interference in Roger Stone sentencing revisions — ed]. It could start by subpoenaing the supervisors that Zelinsky named during his testimony and it could continue when Barr testifies in July. As Zelinsky noted in his opening statement, the deliberative process privilege, which the White House has long used to shield the president’s allies from testifying, does not apply if it is being used to cover up government misconduct or if the government selectively releases information in a misleading fashion. The House Judiciary Committee should not permit Barr to skirt its subpoena, and should ask him pointed questions about his conduct in the Stone sentencing, the Michael Flynn dismissal, and the teargassing of protesters outside the White House.

source

As a typically irrefutable-sounding New York Times editorial confidently laid out when Barr was authoritatively spreading a false narrative about the findings of the Mueller Report, a lying mischaracterization Mueller himself immediately objected to: Why Barr Can’t Whitewash the Mueller Report.

Sorry, Grey Lady, it appears he could, and did. So much for your precious norms.

Upon taking office in February 2019, Barr refused to recuse himself from Russia/Mueller Investigation, notwithstanding that in June of 2018 he had sent a 20 page unsolicited legal memorandum to the Department of Justice — which he separately sent to and discussed with the president’s legal team — in which he perversely claimed that Mueller had no authority to investigate the Trump for obstruction of justice. When Mueller filed the report of his investigative findings with Barr, the latter summarized them in a letter to Congress that can only be characterized — charitably — as a whitewashing of much of the wrongdoing that the former had uncovered. In fact, when a redacted version of the report was released in April of 2019, fact-checkers and news outlets reported that Barr had deliberately mischaracterized the Mueller report and its conclusions.

source

The recent, unexplained promotion, resignation, er, “presidential firing” of US Attorney Geoffrey Berman:

The only plausible reason for Berman’s sacking would appear to be his record as U.S. Attorney including: his prosecution of Michael Cohen, Trump’s prior attorney/fixer; his prosecution of two associates of the president’s private lawyer Rudy Giuliani, who were said by prosecutors to have been involved in the effort to recall the United States ambassador to Ukraine, Marie Yovanovitch; his investigation of Giuliani himself, in connection with allegations stemming from his lobbying practice; and his indictment, against Trump’s personal wishes, of Halkbank, a Turkish state-owned bank, on charges that it conspired to undermine the United States Iran sanctions regime.

There is much else one can say about Barr and about how he has perverted the administration of justice during his most recent tenure as attorney general. But the instances set forth above are noteworthy because they are part of a clear pattern. The findings of the Mueller report showed there was massive Russian interference in the 2016 presidential election, almost all of it on behalf of Trump. Those findings were an embarrassment to Barr’s boss and, more importantly, a huge blow to his boss’s incredibly fragile ego. In response, Barr, doing Trump’s bidding, set out upon a course to do all he could to discredit the Mueller investigation. He misrepresented its findings, is still pursuing a vengeful and baseless investigation into Mueller’s investigators, and has sought to undermine two of Mueller’s most important prosecutions. His firing of Berman is of a piece with his treatment of the Mueller investigation. Berman went after Trump associates, and so Berman had to go. And he had to go before he could do any more damage to Trump’s reputation.

source

Barr has to go, before he can do any more damage to the administration of justice in the USA, to our shaken experiment in democracy itself. It won’t happen voluntarily for this shameless political bully, and not by the operation of law either. Not while Mr. Trump is the president and The Grim Reaper, Mitch McConnell, is a gleeful and all-powerful party to the president’s ongoing obstruction of justice.

The House still ought to initiate impeachment of Barr — let the American people hear a clear presentation of the many reasons he needs to vacate his office and then watch as Mitch vows to do everything possible to work closely with Barr’s defense team and let Barr off the hook in another quick party-line Senate trial without witnesses or evidence. With all the legal niceties of an old-time Southern trial for a black man accused of a capital offense, only in reverse — Barr style! — with the greatest of deference extended to friends of the right people– in the “interests of justice” as Barr likes to phrase it.

Time for another nationally televised (only one camera, no reaction shots!) demonstration of what the Republican Party has become under its greatest leader. The time is right for it now, if Nancy Pelosi gets out of the way.

American Racism 101

Yesterday the racist-in-chief deployed 400 National Guard troops to protect Washington D.C. area monuments to white supremacy, statues of men who led a violent insurrection against the United States. Most of these “beautiful monuments” were erected decades after the end of the Civil War, honoring the leaders of the heroic fight to save a cherished and genteel way of life based on race-based human bondage. Many were put up as memorials to the “Lost Cause” by the United Daughters of the Confederacy, during decades of unpunished terrorism against blacks. These monuments to the Confederacy were put up to underscore the brutal fact that no mere Constitutional Amendments, after the deadliest war in U.S. history, were going to change the glorious ways of the former Confederacy.

A friend sent me this excellent video recently. It sets out, in 17 fast-paced minutes, the history of some of the highlights of American racism at law. It is smart and well-presented. It does not dwell on, or even really mention, the massive, deadly violence against minorities that accompanied much of this racism at law. I highly recommend it as a primer on racial inequality.




Here is just one striking fact presented. The GI bill helped lift countless veterans out of poverty in post World War Two America. My father and literally tens of thousands of other WWII veterans in New York State and New Jersey, took advantage of the GI Bill to get (in addition to college degrees) subsidized mortgages to buy homes, an investment that turned out to be the bulk of their family’s wealth. 67,000 such GI bill mortgages were granted to veterans in those two states in the post WWII years, fewer than 100 went to non-white veterans [1]. Trump’s father wasn’t the only one profiting handsomely from openly racist housing policies in those years .

As the argument over how racist is too racist rages on the streets of our nation, in Congress, many white people are examining their assumptions for the first time. White Privilege, for example, is much harder for whites to see than for everyone else. This is the best evocation I’ve ever seen of the benefit conferred by “white” skin, even if you are poor and homeless. As I wrote to the author “you go, girl!”

Let’s be clear. Racism, although deep in the heart of some of America’s wealthiest and most powerful psychopaths (Charles Koch, for example) is used primarily to keep poor people divided. This goes back to our earliest days, when Virginia, before 1700, passed laws to divide poor whites– indentured servants, many of whom made common cause with rebellious slaves and wary local natives– and their natural allies. Whites were given superior rights. They got to keep their clothes on while being whipped, got monetary compensation when they were released from bondage (if they survived it) and so forth. Poor whites hating poor blacks has a long history in this country and the “superiority” of poor whites has always been upheld by law and encouraged by custom.

As for the long-accepted deadly violence against “non-whites,” (and in particular “blacks”), “whites” are just starting to learn about some of the most shameful and atrocious racist pogroms in our history. Have you ever heard of the Red Summer of 1919? I just learned about it yesterday, and surprisingly, it had nothing to do with J. Edgar Hoover’s crippling terror of Communism (which was also on the rise back then). The Red Summer of 1919 refers to the many unpunished outbreaks of murderous violence against blacks that season.

After the senseless slaughter of World War I, the War to Make the World Safe for Democracy, there were outbreaks of deadly white on black violence across the country (just as the deadly pandemic of 1918-19 was coming to an end, incidentally), murderous pogroms in more than three dozen cities and towns across the USA. White people just went nuts and somebody had to pay. In the years that followed, Ku Klux Klan membership soared (reaching 2.4 million paid memberships in 1924), harsh anti-immigration laws were passed, monuments to the heroes of the former Confederacy were placed on pedestals in prominent places.

History is boring shit, I know. What do long ago outbreaks of deadly mass insanity have to do with anything we are experiencing today? I don’t know, probably nothing… We’ll be back at the malls soon, America will be great again, everything will eventually be fine. No worries!

Unless you’re not “white”, I guess.



[1] here are some notes on the rest of the video (with some additional editorial flourishes from me):

1970  70% of blacks had decent paying blue collar jobs, 1987 28% (as union membership was under attack, of course).  Massive unemployment —-> spike in drug addiction (as in white rural opiate areas now).   The “War on Drugs…” our new Prohibition (since the first was so successful) cracks down on “lawless” blacks.    “First black president” Clinton cuts public housing budget by billions while increasing prison budget by even more.   1980  41,000 locked up for drug crimes, today 500,000 (mostly for possession alone).   Why do cops need grenade launchers?   No-knock warrants? Total prison population 1980:  350,000.  2005: 2,300,000.   Higher percentage of imprisoned blacks in USA than in South Africa at the height of apartheid.    Prison record = no job prospects after prison, ban from public housing and other programs.Georgia drug law allowing life imprisonment for second drug offense, used on 1% of white defendants, 16% of black ones —  98% of life imprisonments under this law were for black drug users.  Nothing racist about that!Average black household has 1/10 the wealth of the average white household.   Criminalize the problem of unemployment, as under the old Black Codes when black “vagrancy” “idleness” and “mischief” were punishable by forced labor, et, voila: President Trump! 

Writ Of Mandamus– extraordinary legal remedy, ordered in Flynn Case, 2-1

Federal Judge Noemi Rao, confirmed by party-line Senate vote in 2017 to work for the Trump White House, appointed to the D.C. Circuit Court of Appeals by Mr. Trump (to fill the seat vacated by Kavanaugh, when he was promoted), wrote a clear and learned-sounding opinion granting a rare legal remedy, a writ of mandamus, in this case ordering federal judge Emmett Sullivan to dismiss charges against Mike Flynn without a hearing on the merits of the DOJ’s motion to dismiss.

Writing for the 2-1 majority, Judge Rao set out why the extraordinary legal relief sought by Trump’s first (of four, so far) National Security Advisor, the man who led the “Lock her up!” chants before pleading guilty to charges including lying on his sworn security application about being on the payroll of the Turkish government. Judge Rao explained the legal necessity to for the presiding just to immediately dismiss the case against Mike Flynn, without arguments on the merits. The case involves the Barr Department of Justice seeking to nullify the sworn confession of a confederate of the president. Barr’s DOJ worked in concert with Flynn’s lawyers, who filed a motion in the Court of Appeals to force dismissal of the case pursuant to the DOJ’s unprecedented motion to withdraw criminal charges after guilty pleas. Judge Rao wrote, in granting the unusual remedy of mandamus that this was a not unusual case and that the unusual government request to dismiss a case in which they’d secured guilty pleas must be granted under this unusual set of facts.

As cramped in its legal reasoning as Kavanaugh’s recent 5-4 Supreme Court decision ruling in favor of the petitioning Republican National Committee that Wisconsin citizens had to vote in person if they wanted to cast ballots in an election that could neither be constitutionally postponed nor extended, it is better written. (Kavanaugh, Rao’s predecessor, now has the luxury of never being appealed, so that, rather than a lack of Judge Rao’s seeming legal sophistication, may account for his nonchalance and judicial sloppiness.)

Judge Rao’s argument rests heavily on the purported irreparable harm a hearing prior to dismissal would have on the discretionary powers of the Executive Branch and on the presumption of “regularity” it is entitled to — the presumption that it is acting legally, fairly and without prejudice or favor.

Her argument relies even more heavily on the same fundamental legal principle that Kavanaugh’s Wisconsin voting decision does: we have a one vote majority, so suck it, loser cucks!

I will spare you reading her legal prose. In a nutshell, she finds in this case the extraordinary situation in which no hearing may be held before the judge grants the motion the law says is granted “by his leave.” The reason is that such a hearing would be an unconstitutional usurpation of Executive Branch prerogatives.

(the decision is here — click on the In Re Flynn link or download your own copy)

I don’t necessarily recommend it for non-lawyers, although the dissent is beautifully presented, one former prosecutor said it sings. Well worth reading, and crisply written, skip down to it. I have selected some pertinent sections to give you the gist of both arguments [1]:

Flynn petitioned for a writ of mandamus before this court
pursuant to the All Writs Act,28 U.S.C.§ 1651, seeking three
forms of relief: (1) an order directing the district court to grant
the motion to dismiss; (2) an order vacating the amicus
appointment; and (3) an order reassigning the case to a different
district judge.

For this court to grant a writ of mandamus, “the right to relief must be ‘clear and indisputable’; there must be ‘no other adequate means to attain the relief’; and ‘the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’” In re Cheney, 544 F.3d 311, 312–13 (D.C. Cir. 2008) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004)). Applying these standards, we grant Flynn’s petition in part.

Let us pause for a telltale footnote:

2 See U.S. Dep’t of Justice, Justice Manual § 9-27.200 cmt. (2020)
(“[A]s a matter of fundamental fairness and in the interest of the
efficient administration of justice, no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”).

We note here (all of us) that this DOJ directive refers to “initiating” a prosecution, not dismissing it after the admissible evidence actually results in a guilty plea. In Flynn’s case the defendant has signed a detailed plea deal admitting to numerous criminal offenses, offenses he later sought to plead innocent to in a changed plea. He stood by his guilty plea twice, under oath. In Flynn’s case the DOJ’s after-the-fact motion to dismiss requires actually vacating a sworn statement acknowledging guilt. In granting the extraordinary remedy of a writ of mandamus to dismiss the charges, under these highly unusual circumstances, Judge Rao writes:

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.

Fokker, of course. Naturally the judge would cite a case called Fokker, over and over. Fokker, by the way, is not a controlling precedent, it turns out, since the judges in that case made related observations and recommendations (dicta) but no holding that created a binding precedent for the DC Circuit Court. The dissent pithily points out that Judge Rao’s ruling converts dicta (non-binding) to dogma (violations of which traditionally punishable by excommunication and death).

Were Judge Rao and her colleague right to rule in favor of this extraordinary remedy in the Flynn case, which as the judge blandly and authoritatively (2-1, fair is fair) opines is “not the unusual case where a more searching inquiry is justified”? Let’s hear a bit from Robert Wilkins, the dissenting judge on the three judge panel:

WILKINS, Circuit Judge, dissenting in part: It is a great
irony that, in finding the District Court to have exceeded its
jurisdiction, this Court so grievously oversteps its own. This
appears to be the first time that we have issued a writ of
mandamus to compel a district court to rule in a particular
manner on a motion without first giving the lower court a
reasonable opportunity to issue its own ruling; the first time
any court has held that a district court must grant “leave of
court” pursuant to Federal Rule of Criminal Procedure 48(a)
without even holding a hearing on the merits of the motion; and
the first time we have issued the writ even though the petitioner
has an adequate alternative remedy, on the theory that another
party would not have had an adequate alternate remedy if it had
filed a petition as well. Any one of these is sufficient reason to
exercise our discretion to deny the petition; together, they
compel its rejection. I therefore respectfully dissent from the
majority’s grant of the writ.

Mandamus is a “drastic and extraordinary remedy,”
Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004)
(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)), and
its “three threshold requirements are jurisdictional,” such that
the absence of any one compels denial of the writ and dismissal
of the petition for want of jurisdiction, Am. Hosp. Ass’n v.
Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016); see also In re
Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir.
2014) (“[T]hree conditions must be satisfied before a court
grants a writ of mandamus: (1) the mandamus petitioner must
have ‘no other adequate means to attain the relief he desires,’
(2) the mandamus petitioner must show that his right to the
issuance of the writ is ‘clear and indisputable,’ and (3) the
court, ‘in the exercise of its discretion, must be satisfied that
the writ is appropriate under the circumstances.’” (quoting
Cheney, 542 U.S. at 380–81)). In issuing a writ of mandamus
compelling the District Court to immediately grant the Government’s motion to dismiss the information against
Flynn, the majority concludes that each of these prerequisites
is satisfied. The majority is in each respect mistaken.

Judge Wilkins also, persuasively, writes:

In considering whether Flynn’s right to relief is “clear and
indisputable,” it serves to remember that the question at hand
is not whether or under what circumstances a district court may
deny a Rule 48(a) motion, but whether it may give
consideration to such a motion before ruling on it. It should
come as no surprise that, before today, neither we nor any other
Court of Appeals has ever read Rule 48(a)’s “leave of court”
provision to mean that a district court may not even consider
such a motion before giving its “leave.” Cf. United States v.
Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973) (“[W]e do not
think Rule 48(a) intends the trial court to serve merely as a
rubber stamp for the prosecutor’s decision.”). In fact, some of
our case law clearly points in the opposite direction: “The
requirement of judicial approval entitles the judge to obtain and
evaluate the prosecutor’s reasons.” Id.(emphasis added).

The dissenting judge makes this impossible to refute (but easy to simply ignore, if you are writing for the majority) point about why the extraordinary remedy of forcing a court to dismiss the case (before a hearing) of a man who has already pleaded guilty is not allowable in this case. A writ of mandamus is available only in the rare situation where petitioner has no other legal avenue to attain the legal result petitioner seeks. Here:

The inconvenient reality is that the petitioner— Flynn— has an adequate means, via a traditional appeal, to attain relief should the District Court deny the Government’s Rule 48(a) motion. See Inre al-Nashiri,791F.3d 71, 78 (D.C. Cir. 2015) (“Mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.”); Cheney, 542 U.S. at 380–81 (noting that the requirement of absence of adequate alternative remedies is “designed to ensure that the writ will not be used as a substitute for the regular appeals process”). This fact alone defeats our jurisdiction and requires the Court to dismiss Flynn’s petition for a writ of mandamus.

Judge Wilkins adds:

In issuing the writ compelling the District Court to grant the
pending motion without considering it, the majority shuts its
eyes to the unsettled state of the law on the relevant questions:
the import of Rule 48(a)’s “leave of court” provision, the size
and shape of a district court’s discretion in considering an
unopposed Rule 48(a) motion, and the interplay between the
Executive’s prosecutorial discretion and the Judiciary’s
adjudicative power in these circumstances. Flynn has adequate
means to attain the relief he seeks, and he has pointed to no
authority mandating his preferred outcome here. As such,
Flynn fails to carry his burden, and especially given that the
District Court has yet to rule on the motion to dismiss, the writ
should not issue to compel the District Court to grant the
motion.

Judge Wilkins makes another compelling point, also unaddressed by Judge Rao, about Flynn’s attempt to retract a sworn guilty plea:

The majority also concludes that the writ should issue to
compel the vacation of the District Court’s order appointing
amicus (1) to address whether Flynn should be held in criminal
contempt for perjury, and (2) to present arguments in
opposition to the Government’s otherwise-unopposed Rule
48(a) motion. In neither respect has Flynn carried his burden
to establish that his right to relief is “clear and indisputable.”

We should also note the numerous amicus briefs filed on behalf of Mike Flynn’s urgent emergency application to have the trial judge barred from considering anything before dismissing the case against him (see list of big shots who weighed in for Flynn at bottom of this post).

Wilkins continues, regarding Flynn’s possible contempt of court:

“The power to punish for contempts is inherent in all
courts; its existence is essential . . . to the due administration of
justice.” Ex parte Robinson, 86 U.S. 505, 510 (1873); accord
Michaelson v. United States, 266 U.S. 42, 65 (1924) (referring
to this premise as “settled law”). Federal Rule of Criminal
Procedure 42 provides a procedure by which a district court
may appoint an attorney to prosecute contempt, should the
government decline to do so. FED. R.CRIM. P. 42(a)(2). This
Rule reflects the fact that “it is long settled that courts possess
inherent authority to initiate contempt proceedings for
disobedience to their orders, authority which necessarily
encompasses the ability to appoint a private attorney to
prosecute the contempt.” Young v. UnitedStates ex rel. Vuitton
et FilsS.A., 481U.S. 787, 793 (1987). “Moreover, a court has
the power to conduct an independent investigation in order to
determine whether it has been the victim of fraud.” Chambers
v. NASCO, Inc., 501U.S. 32, 44 (1991). Far from establishing
his clear and indisputable right to relief, neither Flynn, nor the
majority in his stead, engages this precedent or forwards any
legal arguments as to why a district court that may undeniably
appoint a private attorney to prosecute contempt lacks the
lesser power to appoint amicus to advise it regarding whether
it ought to do so. Nor does the majority explain why directing the District Court to grant the motion to dismiss renders moot
the District Court’s appointment of amicus to advise it on the
legally separate issue of contempt.

Wilkins reaches the heart of the DOJ’s dodgy legal rationale for suddenly dismissing the case against Flynn as he wraps up his dissent:

The majority opinion effectively transforms the
presumption of regularity into an impenetrable shield. In 2017,
the then-Acting Attorney General told the Vice President that
Flynn’s false statements “posed a potential compromise
situation for Flynn” with the Russians, Gov’t Mot. Dismiss
Crim. Info. Ex. 3 at 8, No. 1:17-cr-232, ECF No. 198-4 (May
7, 2020), and just a few months ago, the prosecution said that
Flynn’s false statements to the FBI “went to the heart” of a
valid counterintelligence inquiry and “were absolutely
material,” Gov’t Surreply Mot. Compel Produc. Brady Mat. at
10–11, No. 1:17-cr-232, ECF No. 132 (Nov. 1,2019). Now, in
a complete reversal, the Government says none of this is true. Gov’t Mot. Dismiss Crim. Info. at 13–16, No. 1:17-cr- 232, ECF No. 198. The Government doubles down by asserting in its motion to dismiss that Flynn’s statements could not have been “material” within the meaning of 18 U.S.C. § 1001 because the FBI had no grounds for any “viable” investigation of Flynn at the time he made those statements, id. at 13, even though that contention appears squarely belied by our precedent, see United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010) (“We . . . hold[] a statement is material if it
has a natural tendency to influence, or is capable of influencing,
either a discrete decision or any other function of the agency to
which it was addressed.”) (emphasis added); United States v.
Hansen,772 F.2d 940, 949 (D.C.Cir. 1985) (Scalia, J.) (“A lie
influencing the possibility that an investigation might
commence stands in no better posture under § 1001 than a lie
distorting an investigation already in progress.”). This is no
mere about-face; it is more akin to turning around an aircraft
carrier.

The Government asserted to us that it has no duty to inform
the court in a motion to dismiss pursuant to Rule 48(a) of all of
its reasons for seeking dismissal. Oral Arg. Tr. 33. Today the
majority declares that nevertheless—in spite of the
Government’s abrupt reversal on the facts and the law, and
although the Government declares itself entitled not to be
forthcoming with the District Court—these circumstances
merit no further examination to determine whether there may
be additional reasons for the prosecutor’s actions, and if so, if
any such reasons are impermissible. Under the majority’s
interpretation of Rule 48(a), so long as the defendant consents
to the dismissal, “leave of court” is a dead letter.


The Government may be entitled to “leave of court” under
Rule 48(a) to dismiss the criminal information to which Flynn
pled guilty, but that is not for us, as a Court of Appeals, to
decide in the first instance. Rather, the District Court must be
given a reasonable opportunity to consider and hold a hearing on the Government’s request to ensure that it is not clearly
contrary to the public interest. I therefore dissent.

Of course, as we see over and over, a simple majority decides such cases. As even a litigant as legally unsophisticated as Mr. Trump can easily see, on a three judge panel, two beats one every time!

D.C. District Court Judge Emmet Sullivan, the presiding judge brought to court for emergency intervention by Flynn’s lawyers (supported by a veritable Who’s Who of prominent government Republicans and related “outside groups”) to stop the hearing Sullivan had scheduled to hear evidence before deciding whether to dismiss the case, can appeal this highly unusual partisan ruling (allowing the DOJ to immediately dismiss the case against a presidential favorite, “with prejudice” — “forever”– without a hearing) to the full Appeals Court. In fact, he did so immediately.

Not surprisingly, Flynn’s lawyer’s Hail Mary emergency move to stop a hearing on the motion to dismiss was supported by amicus briefs from, 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.

Even if Judge Sullivan had not appealed, the Appeals Court, on its own initiative, can review the case and decide whether the two judges followed the controlling law in ruling as they did for this extraordinary remedy in a “not unusual case”. It is important that the review take place, particularly in light of several other recent highly partisan DOJ irregularities and bold-faced abuses of discretion. Unless Barr recommends a Casper Weinberger-style presidential pardon of Flynn to make the case moot, this matter should wind up in the Supreme Court some time in 2021.

Here is an opinion that contrasts sharply with my own (unlike mine it is “fair and balanced TM”), by someone who may or may not have read Judge Rao’s remarkable ruling and the brilliant dissent. No need to read so much technical material when you know the TRUTH! This is from FOX:

The U.S. Court of Appeals for the District of Columbia Circuit on Wednesday ordered the controversial lower court judge, Emmet Sullivan, to follow the law by dismissing the false statements case wrongfully brought by the original federal prosecutors who were either incompetent or corrupt — maybe both.

As evidence emerged that Gen. Flynn was set up and framed by malevolent actors at the FBI —fired Director James Comey, fired Assistant Director Andrew McCabe and fired counterintelligence agent Peter Strzok — the Department of Justice (DOJ) moved to dismiss charges against Flynn a month ago.

GREGG JARRETT: MICHAEL FLYNN’S PROSECUTION IS A SHAMEFUL INJUSTICE – CHARGES AGAINST HIM SHOULD BE DROPPED

If the retired three-star general can be faulted for anything, he is guilty of being human. Under threats and duress (as well as bad advice from his prior conflicted counsel), Flynn pleaded guilty.

He caved in to the tactics of intimidation, coercion and bullying. He should never have done so. Flynn began to regret it, as evidence of his innocence materialized. He then sought to withdraw his plea. He had the absolute right to do so under the law [although only under certain circumstances — ed.].

Judge Sullivan inexplicably balked. This precipitated a skilled legal effort by Flynn’s new and better attorney, Sidney Powell, to uncover the exculpatory evidence proving that her client should never have been charged with anything at all.

Notes concealed by the FBI and prosecutors showed that Flynn did not lie to bureau agents.  Instead, he was the victim of a politicized campaign by Comey, McCabe and Strzok to falsely accuse and wrongfully convict him of a crime he never committed. The bureau never had a legitimate reason to even interview Flynn because he had done nothing wrong and the FBI well knew it.

This is important because whatever Flynn said during his FBI interview was “material” to nothing. In a false statements case (18 U.S.C. 1001), “materiality” is an essential element of the crime. Hence, the new prosecutors in the Flynn case soon realized they could not possibly have won the case. Not only did Flynn tell the truth, according to the only witnesses involved, but his remarks were immaterial to an illegitimate investigation. [2]…

…Again, Sullivan balked. Something was amiss. At this point, it became clear that Sullivan was not a neutral or objective jurist dedicated to following the law. He was a rogue judge with an agenda. His decisions reeked of dead fish…  

Judge Sullivan had no authority under the Constitution to usurp the power of a separate branch of government.

about the author:

Gregg Jarrett is a Fox News legal analyst and commentator, and formerly worked as a defense attorney and adjunct law professor. He is the author of the No. 1 New York Times best-selling book “The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump. ” His latest book is the New York Times bestseller “Witch Hunt: The Story of the Greatest Mass Delusion in American Political History”

source




[1] I tried to omit most of the crucial legal citations, for your ease of reading, but the formatting troubles were formidable– just skip over the citations, if you can.

[2] Naturally, it is now “immaterial” that Flynn was fired by Trump for lying to Mike Pence about contacts with the Russian ambassador during the transition period, that he repeated the same lie to the FBI who gave him numerous chances to correct his lie, that he pleaded guilty to lying as well as being on the payroll of Turkey as he took the National Security job, without disclosing this clear conflict of interest on his sworn security screening application. Under Barr’s new theory: NO MORE LIE!

Civil War Reenactor Death Cult

I don’t pretend to fully understand some things about human behavior. Why did tens of thousands of poor southern whites, men who benefited zero from slavery, enthusiastically enlist in the Slaveholder’s (the antebellum 1%) Insurrection, the American Civil War?

It was cast as the fight for freedom, to protect a cherished way of life from tyrannical encroachment, a glorious cause to die for, OK, but how does that actually work? How do thousands of men sign up to fight to the death (or dismemberment) for a cause they derive no benefit from? I have never been able to wrap my brain around that one.

The continued controversy over removing/not removing statutes of traitors to the United States, men who took up arms in a bloody rebellion against their country, for the sake of “home rule” is just as mysterious in its way. These statues were erected decades after the Civil War, during the height of xenophobia, white supremacism and what is quaintly called Jim Crow — the viciously racist Black Codes in all of the states of the defeated Confederacy.

These statues were monuments to a glorious lost cause that will never die: White Supremacy. Sometimes they were placed on pedestals near the sites of forgotten (by whites) atrocities against black citizens. What nation puts up statues honoring violent traitors who treated their countrymen as enemies to kill? What is the actual controversy about taking down these deliberate rewritings of history erected decades after the Confederacy lost the war to preserve its cherished autonomy?

Today’s events are giving me a tiny bit of insight, but not much. We are seeing that same “mentality” of irrational, heroic certainty in action, during a plague, a highly infectious, incurable, often deadly pandemic. The president has (while accusing his enemies of doing the same) politicized reasonable medical precautions, like the CDC-recommended wearing of masks — only faggots, douchebags and cowards wear masks, masks are for cucks, weak, loser men whose wives have sex with others because their cuckolded husbands are so lacking in virility. As for women? Who cares, grab ’em by their gullible husband’s pussies. If you’re the leader, they let you do it!

In every state that has reopened on a wide scale, cases of COVID-19 have reached new record levels. This is not spin, it’s not the result of better testing by a brilliant administration always one step ahead of the rest of the world. It’s data, verifiable numbers based on new reported infections. Florida — big increase in COVID-19 since reopening, the most cases ever so far in that state. Same unmistakable cause and effect in Texas, Georgia, Alabama, most, if not all, of the former Confederacy, in fact. Check the map. Jesus, it’s not all that hard to see the trend. If you trust your eyes, rather than the assurances of a compulsive liar.

I don’t know how to think of the president’s deliberate lying, in this case about the science, other than depraved indifference to human life, malignant narcissism or simply good old-fashioned evil. He’s hellbent on basking in the adoration of his people, a solid block of Americans who vociferously love him no matter what.

As one of his many lawyers insisted in federal court, somehow keeping a straight face, (in a case claiming absolute secrecy for everything the president or anyone he talks to says or does), the president could not be arrested or criminally investigated if he shot somebody on Fifth Avenue. The point is clear, Mr. Trump could shoot somebody on Fifth Avenue, in the face, with a small caliber handgun, then skull-fuck the corpse, and not lose a single vote. Chant it with me: USA! USA!!!.

The man does have an undeniable talent for spinning things, to the delight of his unshakable base. Here’s his quick, witty take on the recent events on American streets, the plague, the ongoing mass protests against widespread police brutality against unarmed Americans, and radical Democratic tyranny (and of course, the media’s constant, shameless lies):


You can’t “Covid Shame” a leader like Trump– NO WAY. He’s determined to have live rallies. They are what he lives for, literally, vividly performing for adoring campaign rally crowds.

In spite of the way he often sounds, the man’s not completely stupid. He knows there could likely be a pandemic spike among those who attend his live, packed, freedom loving, maskless rallies. He truly doesn’t care. Plus– he’s taken a reasonable precaution. His lawyers have drawn up a waiver that everyone who attends his rally must sign before they will be admitted. Standard legal disclaimer of any and all liability, the kind you must click “Accept” at the bottom of to use virtually any on-line product.

If you catch this incurable Democrat HOAX disease, don’t try to blame us, numb nuts! We’ve got your electronic John Hancock right here on the waiver. The language, you can plainly see, is neither hortatory (as the president tweeted of something else recently) nor precatory, it is unambiguous and mandatory, binding and iron-clad. Read it and sign, chump. Then scream along with me: LOCK THEM UP! LOCK THEM UP!!!


Now, let the wild rumpus begin! The South shall rise again!