RSN: William Barr's Bogus Case for Jamming Up Hillary Clinton and Springing Michael Flynn, No Questions Asked

07 June 20

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William Barr's Bogus Case for Jamming Up Hillary Clinton and Springing Michael Flynn, No Questions Asked

David R. Lurie, The Daily Beast
Lurie writes: "His Justice Department is claiming that a vast conspiracy targeting Trump took down the general - and that a judge has no business exposing that alleged conspiracy."

hen Supreme Court Justice Louis Brandeis famously declared “sunlight is the best of disinfectants,” he wasn’t prescribing it for a pandemic, like Donald Trump, but addressing the inherent value of disclosing facts about how powerful institutions, particularly the justice system, operate. But now Donald Trump’s attorney general is trying to force a federal judge to dismiss felony charges that the Department of Justice brought against Trump’s former national security adviser, Mike Flynn, and that he pleaded guilty to, while keeping the court and the public entirely in the dark about the reasons for the government’s about face.

Flynn twice admitted under oath to lying to the FBI about calls with the Russian ambassador in 2016, during which he made clear that the new administration planned to go easy on the Russians in the immediate wake of their interference in the 2016 election on Trump’s behalf. Flynn also admitted to lying to investigators about work he had done for Turkey. Yet Barr wants the appellate court to order Judge Emmet G. Sullivan to grant a motion to dismiss the charges against Flynn, purportedly because he is not guilty of the charges and should never have been indicted.

Barr’s motion is a transparent effort to offer fuel for Trump’s conspiratorial “Obamagate” claims, and to provide grist for the president’s assertion that Flynn and, by extension, the president were victims of a vast and shadowy conspiracy that is supposedly “worse than Watergate.”

The DOJ is not only trying to end its own case against Flynn, but is also trying to get an appellate court to issue an extraordinary order, called a writ of mandamus, that would require Sullivan to grant the the DOJ’s motion to dismiss without any inquiry into circumstances giving rise to the DOJ’s sudden reversal of position.

Under the governing rule, the DOJ requires leave of court to effectuate the dismissal of Flynn’s indictment and Sullivan has indicated that he intends to take his responsibility to review the motion with the seriousness that the rule calls for—including by appointing a respected former judge to set forth arguments in opposition to the motion for the court’s consideration, given that the government itself is, for obvious reasons, not in a position to do so.

By bringing a motion purportedly founded on newly discovered evidence of Flynn’s innocence before the court, Sullivan compellingly contends, Barr necessarily invited an inquiry into that evidence, as well as the exceedingly weak legal arguments the DOJ has advanced in favor of dismissing the charges. If the DOJ and Flynn actually believe their contention that Flynn is a victim, not a criminal, one would expect them to favor a searching inquiry into that misconduct. Therefore, the fact that the DOJ is joining Flynn in seeking an order categorically barring such an inquiry raises a huge red flag.

Sullivan’s counsel, Beth Wilkinson (who represented now Justice Kavanaugh during his confirmation hearings) made just that point in her brief to the appellate court, explaining that the DOJ’s unprecedented motion raises a number of serious questions, including and especially, whether the “presumption of regularity” courts normally accord to prosecutorial decision-making should not apply. Though clothed in the language of careful lawyering, Sullivan is advancing the very reasonable concern that, in the guise of saving Flynn from the consequences of prosecutorial overreach, Barr is actually seeking to misuse the courts as a mechanism for a propaganda campaign to discredit the work of Robert Mueller and his investigative team.

The issue now before the appellate court is not whether or not the DOJ’s motion will be ultimately granted. In fact, there are strong legal arguments that a trial judge in Sullivan’s position has very little (if any) leeway to deny a DOJ motion to dismiss an indictment that is unopposed by the defendant (although the issue is unsettled and it is unprecedented for the DOJ to bring such a motion after a defendant has admitted his guilt under oath and entered a guilty plea). Rather, the issue is whether the appeal court should allow the trial court simply to render a decision on the motion before addressing the legal questions it presents.

Mandamus is an extraordinary remedy, particularly in this case, where it would, as Sullivan’s counsel puts it, “short-circuit” the entire normal process of developing a record, and reaching a decision, at the trial court. Federal appellate courts rarely grant such relief precisely because they usually want to have the benefit both of a fully developed set of facts and the trial judge’s response thereto before conducting their own review.

Furthermore, mandamus is rarely granted unless allowing the process to go forward in the lower court risks some immediate harm or prejudice to a party. Indeed, the DOJ recently refused to support a grant of mandamus relief even in a case where the risk of prejudice was obvious and clear. Another D.C. trial judge granted the motion of a right-wing activist gadfly organization, Judicial Watch, to interrogate Hillary Clinton under oath, yet again, over (yes, you guessed it) her emails. The DOJ agreed with Clinton that the trial court erred in granting the motion, yet it refused to support her mandamus application to the appellate court because Barr’s lawyers deemed the circumstances insufficiently “extraordinary.”

By contrast, in the Flynn case, allowing the trial court to take the time to scrutinize and rule upon the DOJ’s dismissal motion in due course will not prejudice the defendant even one iota. He has been and remains free, as he has been since being indicted, and will not spend a night in custody no matter how long it takes the trial court to review the DOJ’s motion.

The only danger in conducting a normal-course review of the merits of the DOJ’s motion is that of too much sunlight. That is, the searching inquiry that Sullivan plans to undertake just may end up proving that the contentions of Barr’s most vigorous critics are true, and that it is the current Trump DOJ—not Obama “holdovers” or the “deep state—who have corrupted the justice system for political ends. Furthermore, as Sullivan has also explained, the inquiry may address whether Flynn committed perjury when he twice admitted his guilt to the court, under oath.

One year ago, the Supreme Court ruled against Trump’s effort to add a citizenship question to the census questionnaire. Chief Justice Roberts, who cast the deciding vote with the court’s liberal members, wrote a decision making clear that, while he was sympathetic to Trump’s effort to add the question, he was constrained from doing so by evidence that had emerged demonstrating the government’s stated purpose, which was to further enforcement of the Voting Rights Act, waspretextual and (though Roberts did not say so squarely) mendacious.

That evidence came to light only because a diligent and careful trial judge insisted that the government comply with his orders to disclose evidence.

It remains highly unlikely that Flynn will spend a night in jail, regardless of his culpability. But having made a motion seeking to end the Flynn case, the DOJ should not be able to avoid careful judicial scrutiny along with a public airing of the facts at issue.

Justice Brandeis’s words remain as true today as they were decades ago: Sunlight is the best of disinfectants.

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National Guard troops patrolling near the White House on Saturday. (photo: Anna Moneymaker/NYT)

Trump Wanted to Deploy 10,000 Troops in Washington DC, Official Says
Phil Stewart, Reuters
Stewart writes: "U.S. President Donald Trump told his advisors at one point this past week he wanted 10,000 troops to deploy to the Washington D.C. area to halt civil unrest over the killing of a black man by Minneapolis police, according to a senior U.S. official."
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Police officers arrest a woman during protests in Chicago on May 30 following the killing of George Floyd by Minneapolis police. (photo: Natasha Moustache/Getty Images)

Inside Bail Funds' 'Nonstop' Efforts to Free the Thousands of Protesters Being Detained Across the US
Andrew R. Chow, TIME
Chow writes: "Following the police killing of George Floyd in Minneapolis, protests spread across the U.S. and the Minnesota Freedom Fund went viral."

EXCERPT:

Now, the money is flowing in at a staggering pace. Following the police killing of George Floyd in Minneapolis, protests spread across the U.S. and the Minnesota Freedom Fund went viral. In just the last week they’ve received some 800,000 individual donations amounting to about $31 million, with the deluge prompting them to ask people to send money elsewhere. “It took Paypal 45 minutes to prepare a download today, because it doesn’t usually have to do this many records,” Boland says.

A bail fund is typically a local collective driven by volunteers who work to raise funds to free people incarcerated on bail, as well as to advocate for systemic bail reform. Across the country, these funds are now receiving a huge number of contributions from donors. The Chicago Community Bond Fund and the Peoples City Council Freedom Fund in Los Angeles have both taken in more than $1.5 million. Free Them All For Public Health, in New York, has raised over $700,000 — and has also asked people to stop sending them money.

The donations are a huge boost for nonprofits who were often previously operating on thin margins. But this financial influx is not the end-all solution to get people out of jail — rather, it’s the beginning of the process. Activists can’t simply walk up to a precinct with a check and leave with freed protesters, especially in an era of COVID-19 complications, curfews, and with police resources spread thin. In this climate, some protesters have been held up to 72 hours before their boosters even get a chance to put up bail money. “There’s a lot of protesters who are basically disappearing into these jails,” Tyler Crawford, the director of mass defense at the National Lawyers Guild (NLG), tells TIME.

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Visitors take a picture at Universal Studios theme park on the first day of reopening from the coronavirus pandemic on Friday, in Orlando, Florida. (photo: Gerardo Mora/Getty Images)

US Coronavirus Deaths Near 110,000 as Local Economies Continue to Reopen
Victoria Bekiempis, Guardian UK
Bekiempis writes: "New deaths have been curving downward in the US, but Covid-19 continues to spread across the country, with thousands of confirmed diagnoses daily."
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A protester in Washington, DC, speaks into a bullhorn as people kneel and hold their hands up in front of Lafayette Park near the White House to protest the death of George Floyd on May 25. (photo: Olivier Douliery/AFP/Getty Images)

Why Ta-Nehisi Coates Is Hopeful
Ezra Klein, Vox
Excerpt: "I can't believe I'm gonna say this, but I see hope. I see progress right now, at this moment."

EXCERPT: 

I had an interesting call on Saturday with my dad, who was born in 1946, grew up dirt poor in Philadelphia, lived in a truck, went off to Vietnam, came back, joined the Panther Party, and was in Baltimore for the 1968 riots. Would’ve been about 22 at that time.

I asked him if he could compare what he saw in 1968 to what he was seeing now. And what he said to me was there was no comparison — that this is much more sophisticated. And I say, well, what do you mean? He said it would have been like if somebody from the turn of the 20th century could see the March on Washington.

The idea that black folks in their struggle against the way the law is enforced in their neighborhoods would resonate with white folks in Des Moines, Iowa, in Salt Lake City, in Berlin, in London — that was unfathomable to him in ’68, when it was mostly black folks in their own communities registering their great anger and great pain.

I don’t want to overstate this, but there are significant swaths of people and communities that are not black, that to some extent have some perception of what that pain and that suffering is. I think that’s different.

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Cemetery workers in protective clothing maneuver the coffin of 57-year-old Paulo Jose da Silva, who died from the new coronavirus, in Rio de Janeiro, Brazil, Friday, June 5, 2020. (photo: Leo Correa/AP)

Brazil Government Yanks Virus Death Toll as Data Befuddles Experts
Diane Jeantet, Associated Press
Jeantet writes: "Brazil's government has stopped publishing a running total of coronavirus deaths and infections in an extraordinary move that critics call an attempt to hide the true toll of the disease in Latin America’s largest nation."

EXCERPTS:

“The authoritarian, insensitive, inhumane and unethical attempt to make the COVID-19 deaths invisible will not prosper,” the health secretaries council said Saturday.

Supreme Court Justice Gilmar Mendes said Saturday on Twitter that “manipulating statistics is a maneuver of totalitarian regimes.” João Gabbardo, the Health Ministry’s former No. 2, told television channel GloboNews that reviewing the death toll “shows the management inexperience in the Health Ministry. There’s no sense to that review. When countries do reviews, the number increases.”

Brazil’s last official numbers showed it had recorded over 34,000 deaths related to the coronavirus, the third-highest number in the world, just ahead of Italy. It reported nearly 615,000 infections, putting it second, behind the United States. Brazil, with about 210 million people, is the globe’s seventh most populous nation. 

Beyond the shifting and incomplete information, critics say, the Brazilian federal government has further eroded trust in its count-keeping with cosmetic changes to official sites that appear designed to de-emphasize the gravity of the epidemic.

One bulletin published by the president’s press office refers to patients in hospitals and intensive care units as “recovering,” even though a significant number eventually die of COVID-19.

“We are becoming an international joke in terms of public health,” said Domingos Alves, an associate professor of social medicine at the University of Sao Paulo. “Deaths cannot be hidden by decree.”

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So far, fewer pigs than feared have had to be euthanized due to the coronavirus shutting down pork plants. (photo: Macduff Everton/Getty Images)

Farmers Find Ways to Save Millions of Pigs From Being Euthanized
Dan Charles, NPR
Charles writes: "A month ago, America's pork farmers were in crisis. About 40 percent of the country's pork plants were shut down because they had become hot spots of coronavirus infection."

EXCERPTS:

"Farmers are pretty inventive people," says David Preisler, CEO of the Minnesota Pork Producers Association. He says farmers made some quick adaptations--they converted older buildings into additional housing for hogs, fed the animals low-energy rations that kept them from gaining weight rapidly, and sent some of their animals to local butcher shops. Others hogs were shipped halfway across the country, from Minnesota to Pennsylvania or California, to processing plants that could handle them.

Minnesota's Board of Animal Health acquired two 80-acre sites that could be used to compost truckloads of hogs. As of May 29, the sites had accepted 17,058 hog carcasses. They could handle many more. Perhaps 100,000 to 150,000 carcasses have been trucked to rendering plants, which convert them into basic materials like grease and protein powder.

In Iowa, the state is offering financial help to farmers who need to euthanize hogs. Farmers applied for funding to dispose of about 25,000 animals but have not yet told the state how many of them actually were euthanized. In mid-May, Iowa Secretary of Agriculture Mike Naig told Iowa Public Radio that farmers in his state had been forced to kill fewer than 5,000 market-ready hogs so far.

At the moment, the crisis appears to be ebbing. Most pork plants have resumed production, but Preisler says "it's too early to tell" whether farmers will be forced to kill more of their pigs. The plants, he says, are running at about 82 percent of their normal capacity, "but if we stay there, that's not good enough" to handle the backlog of hogs on farms.

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