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]

Applying the Martha Kavanaugh Judicial Sniff Test to the Flynn case

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

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

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

How does that legal reasoning smell to you?

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

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

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

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

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

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

How does this all smell to y’all?

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

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

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

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




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

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!

Why Boof Kavanaugh is A Poisonous Partisan

Men like Bill Barr, Mike Pompeo, Mike Pence, Brett “Boof” Kavanaugh, are obvious and proud partisans. Their every action is in service of predictably advancing a political agenda. By predictably I mean that you can forecast how they will respond, based on the desired political outcome. Trump wants to hold up a Bible in front of a church during peaceful protests? Bill Barr will justify the use of police violence to deprive that crowd of its First Amendment right peaceably to assemble, blame violent Antifa and antifa-like leftists (without a shred of proof found by the FBI) for trying to deny the president the opportunity to make himself look like a follower of Christ. Thankfully these men will be gone as soon as Trump is out of office. Not so for the almost two hundred carefully vetted right-wing partisans he has appointed to lifetime posts on the federal judiciary. Not so for Boof Kavanaugh, poisonous partisan.

Here, in a beautiful moment of false optimism, we have “non-partisan” Senator Susan Collins explaining her partisan vote for the most divisive and nakedly partisan Supreme Court nominee since Clarence Thomas. She expressed her “fervent hope” that the appointment of Judge Brett “Boof” Kavanaugh to the Supreme Court will “lessen the divisions in the Supreme Court so that we have fewer five-four decisions, so that public confidence in the judiciary and our highest court is restored.”

How did that fervent hopey changey thing work out for yuh, Susan?

Let’s have a look at the recent confidence-restoring partisan five-four decision on the forced Wisconsin election. Justice Boof Kavanaugh wrote the opinion ruling in favor of the emergency appeal by the Republican National Committee seeking to overturn two rulings extending by six days the deadline for submitting unreceived mail-in ballots in Wisconsin. First a little background detail on straight down the middle “balls and strikes umpire” Boof.

Boof’s mother, Martha Kavanaugh, a former judge supposedly passed on to her dear son her primary advice for judges:  use common sense– what smells right, what smells bad?   Who stands to gain by lying?   Who is more likely telling the truth?

Excellent advice, of course, although, if you look at her son’s decisions, he pretty much takes only one part of that advice, who stands to gain by lying? and applies it to his legal reasoning.   Then rules each time for the more powerful party, who stand to gain even more, by cleverly using legal technicalities to obscure the real issues. A much more respectable judicial method of getting the desired outcome than outright lying, we can all agree.

You want a short course in the crabbed, narrow legalism that makes that kind of reframed ruling possible, read his sickening 5-4 suck-it-cucks opinion overturning two federal courts and forcing Wisconsin voters to stand on long lines, during a raging plague, to vote in person, or not have their votes counted at all.   

You need only read a paragraph or two of his unappealable opinion, and his second to last paragraph, to get the full flavor of it. Then skip to  Ruth Bader Ginsburg’s clear, short, definitive dissent — it’s only 2-3 pages.   Only then will you see an actual statement of the facts, what is at stake in the case.

She’s 100% right, as right as the dissent was in Dred Scott, as right as the dissent often proves to be whenever short-term 5-4 partisan decisions are rendered. Kavanaugh, who maturely writes that the dissent is “quite wrong” is 100% wrong himself- not to mention that he ignores crucial facts in his “narrow”, counterfactual and idiotic ruling (though he claims, in a few words, toward the end of his legal “I know you are, but what am I?” to have given the issue of COVID-19 serious thought). No matter, he has his own and four other stout-hearted, fellow hardline corporatist votes and the dissent only four judges in total.  5-4, we win, suck it cucks!   

Which is, of course, the McConnell mantra for winners.

I’d urge you to read the Ginsburg dissent in that outrageous, partisan 5-4 Wisconsin election case, short and sweet and easy reading.

 Then think of how many more faithless, partisan zombie zealot extremists like Kavanaugh our zombie president has given lifetime zombie judgeships to.   Picture zombie McConnell making that facial expression, showing his great self-satisfaction, like a gassy zombie baby taking a greasy dump in its diaper, Mitch’s equivalent of a human smile, with the accompanying baby shit smell.  Brings tears to my eyes, seeing that look on the smug bastard’s face.

This is how they do it, how fascistic types always do it– a lie that makes people mad is ten times better than all the subtle nuances of the truth.  As every partisan knows.