The en banc hearing didn’t go well for Flynn – or for the judicial system
Courts have become almost entirely political, so when I heard that there was a chance that the DC Circuit Court might be hearing the Sullivan/Flynn mandamus case en banc, I wrote the following prediction:
I think the court will grant the hearing, and I think there’s a good chance – because of the political makeup of the court, which is heavy with Democrats – that they will side with Sullivan. That’s a travesty of justice, but we see a great deal of that these days, don’t we?
I hope I’m wrong. I’d like to feel a little less cynicism.
Well, here’s news of the oral arguments in front of the en banc court:
Powell and Wall were quite impressive – although the deep-state judges didn’t find them so.
Michael Flynn is an American hero. Emmett Sullivan is not.
Whatever the outcome, the fight will continue.
The obscenity continues (unless the en banc decision, which I don’t believe has yet been made, will be one that extricates the judiciary from this glaring, ultra-politicized, banana-republic-style malpractice).
And if it doesn’t, then chalk up another bizarro “win” for Obama and his crew…and a veritable “loss” for American jurisprudence and the country it is supposed to serve.
I am waiting for all of the great old attorneys who went through law school years and years ago when the law was the law, when a case has been dropped by the prosecutor but the judge still wants to hear it would not make sense, what the H E (double hockey sticks) as my dear old mother used to say. Are all of these lawyers so dialed into the left that there are few who will say this doesn’t happen, not hardly at all, if ever, this is most irregular? There is some real strange stuff going on because none of the officials who built a case out of thin air and then perjured themselves have been called on it, and/or charged with all kinds of malfeasance for going after a man who appears to have done nothing wrong except for worn down and pleading guilty to call off the dogs off who were going to go after his family.
We are approaching a most difficult time in the life of our nation and I am too old for this sh*t.
The left have already turned lose the dogs of war and ( I will grant you they are not exactly war dogs but more like demented Cocker Spaniels) there they are with the press giving them a pass on most everything they do while the actual criminal element is having a whole lot of fun shooting and looting. I am too old for this Sh*t.
I’m so glad I spent 12 years sweating an oath to defend the Constitution, not.
Are all of these lawyers so dialed into the left that there are few who will say this doesn’t happen, not hardly at all, if ever, this is most irregular?
OldTexan: A lawyer friend, who graduated in the 80s, told me law schools have been teaching “Critical Legal Studies” since the 80s, so most lawyers have been indoctrinated into the leftist view that the Constitution is an instrument of oppressive power relations and lawyers must fight against that by any means necessary.
The federal judiciary has progressively done away with the democratic American republic, finding new rights in emanations and penumbras.
One federal district judge can tell the president what he may or may not do? Now we’ll have 8 Democrats sitting en-banc telling the DOJ it may not rest its case?
SCOTUS is the pinnacle of this anti-democratic process: five of nine judges? It doesn’t matter if SCOTUS were 900,000 judges; they are unelected and rule for life. The bench has become the de facto major source of legislation! The will of the people be damned.
It is a tyranny dressed in black robes.
It did not begin with Brown v. Board, with the Court finding separate and equal were unconstitutional. There is no Constitutional basis for that ruling, as an example, none. There is no “inherent”; it either is or is not there. “Equal” is surely there, but a ban on “separate” is simply not there, whether you approve of the result or not. There surely is no basis for Affirmative Action in the Constitution either- we are either equal or we are not. Sandra Day O’Connor admitted to what we’ll call judicial legislation by saying that Affirmative Action might need to be around for another 20 years.
SCOTUS keeps shoving America leftward, dismantling the Constitution, much of its actions based on the 14th Amendment while ignoring all else.
A masterful summing up of the pitfalls and challenges ahead by Andrew McCarthy.
https://www.nationalreview.com/magazine/2020/08/24/barrs-dilemma-how-to-get-politics-out-of-the-justice-department/#slide-1
A must read.
Listened to a brief first part of the hearing, and I was surprised–perhaps I shouldn’t have been–at the inanity of the questions being asked by the judges; they seemed to be a bunch of pretty dim bulbs.
P.S.–Spent a horrrrrible first (and only) year studying Law at what was considered a “second tier” Law School, one that had a good reputation and which shall not be named.
One of the many disappointing things that were so discouraging about my experience there was that, in my Constitutional Law class–as I had expected they would naturally do–they did not begin by performing a thorough, Article by Article, Amendment by Amendment review of the text of the Constitution, followed by then doing a deep analysis of the historical background and meaning of the Text and of each one of these Amendments, along with the development of law and cases related to each.
In fact, from my recollection of that disappointing and infuriating time–now some 45 or so years ago–in the course of that class, the Constitution–which one would think was the central subject of that class, and it’s focus–was hardly ever mentioned, or referred to at all, because we just jumped into case law, and only infrequently and tangentially referred back to the Constitution.
I don’t remember the exact nature of whatever kind of flapdoodle we did study but, whatever it was, the actual Constitution did not figure very prominently in it.
It was only decades later that I read about how, starting around 1900, Roscoe Pound, Dean at Harvard Law (it seems it’s always either Harvard or Yale that generates these pernicious ideas and movements) used his powerful position to advocate for what he termed “sociological jurisprudence,” a revolution in how we studied Law in the U.S., from the traditional English approach, to one which focused in case law—case law which has deviated ever further from that English Common Law and from our Constitution.
The lawyers here can tell me if I’ve gotten this right or not about Pound.
Thank you for the comments above and ‘there you have it’ law as taught in the last three decades is not law, not Common Law nor Case Law but whatever you want it to be or something. And that’s the way you lose a civilization. The next dark ages will not be very good. In a couple of hundred year from now they will look at our overpasses and highways and wonder who were the folk who build these.
Snow on Pine on August 13, 2020 at 9:28 pm said:
* * *
AesopSpouse had the same disquieting experience in law school in the late 1970s — lots of Constitutional case law, but no Constitution!
And this was at a very conservative institution.
Maybe they just expected the students to already know what the Constitution said, or that its provisions would be clear in the context, but IMNSHO it was a very stupid pedagogical decision.
In retrospect, I think it was because they were training future lawyers — who have to cite case law according to how it helps their clients — rather than future judges. Again, IMO, there ought to be formal training for jurists like Snow outlined; or, there should have been, before Critical Race Theory and Marxism became the Ur-texts of legal decisions.
Maybe, if there had been such training, they wouldn’t have replaced the Constitution.
Regardless of what the DC Cir decides, the Justice Dept should simply inform Flynn that he is free to go and ignore the Court. Trump has sworn an oath to defend and protect the Constitution. If the court rules in a way that completely disregards the clear meaning, ignore it. Judge Sullivan isn’t going to round up Flynn. The judges are an affront to morality, ethics and common decency. We should stop pretending otherwise.
However, there is some good news to balance the bad news, elsewhere in the Swamp.
https://pjmedia.com/news-and-politics/tyler-o-neil/2020/08/13/exclusive-trump-turns-the-tables-on-civil-rights-commission-with-appointment-of-j-christian-adams-n787758
Snow on Pine,
My experience at law school was rather similar. My con law professor was actually a former assistant White House counsel in the Obama White House. I won’t name here, but he’s a prominent attorney in the “lawfare” nexus.
Personally, I got along with him well. Politically, we were worlds apart and he knew that. To his great credit, he gave me an “A” in the class.
But we rarely consulted the text of the actual Constitution. Modern explication of constitutional law spends an inordinate amount of time focusing on what Supreme Court justices say the law is, not necessarily the text of the Constitution. There are actually a few good reasons for that, number one being, that the Constitution is rather threadbare and you have to fill in the gaps with something. This is similar to what George Washington had to do when he became president — he had to set precedents because the executive power wasn’t fully fleshed out by the Constitutional Convention of 1787.
Please note: I’m not defending the administrative or bureaucratic deep state, nor am I giving cover to the various ways the Supreme Court has gotten it wrong over the years. I’m just pointing out that to really understand constitutional law, you have to know how it plays out in the joints and the interstitial zones, in addition to the literal text of the document itself. Plus, there is separation of powers, which is its own ball of wax, and which is going to play a rather critical role in the event that the Flynn case gets appealed to SCOTUS, which I believe it will.
This is from the Carter Page set up. But it’s basically the same people who pushed the Flynn prosecution.
Clinesmith was charged in Washington, D.C., on Friday with one felony count of making a false statement, and will plead guilty in a plea deal with prosecutors conducting a criminal probe of the Russia investigation, the New York Times reported.
https://www.nationalreview.com/news/fbi-lawyer-to-plead-guilty-of-falsifying-document-for-carter-page-fisa-warrant/?
It is my understanding that the homeless in Seattle can vote by registering at city hall. With all mail voting and a nebulous pool of “voters” there is no way these commie A-holes can be voted out of office. They can just create as many phony baloney non-existent voters as they need. The Seattle Supreme Court has ruled that Seattle can keep the amount tax money made from their BS ammo tax a secret. The voters have no right to know if government policies are achieving the results they claimed.
You can’t fix utterly corrupt government without fixing utterly corrupt elections. You can’t fix utterly corrupt elections without fixing the utterly corrupt courts. You can’t fix the utterly corrupt courts without fixing utterly corrupt government and elections. They are mutually supporting positions.
Michael Towns:
That’s how con law was taught when I was in law school aeons ago.
However, I don’t see why a small part of the course couldn’t or shouldn’t be spent studying the entire text of the Constitution itself. It wouldn’t take too much time. Then everything else – all the cases that are studied and the opinions that are read – would be grounded in knowledge of the original document.
Of course, that probably would be deemed too focused on the document as it is rather than as a “living document” to be changed by any judge who happens to want to interpret it differently.
John on August 14, 2020 at 1:06 pm said:
This is from the Carter Page set up. But it’s basically the same people who pushed the Flynn prosecution.
Clinesmith was charged …
* * *
Well, that’s one.
Hope he won’t the the last.
And file this under “apology not apology” – how can anyone do something like this without knowing exactly what they were doing???
He deeply regrets getting caught; the change was fake but accurate, he believes.
(Dan Rather redux – read Jeff Dunetz in 2015 on the hagiographic movie about it).
https://lidblog.com/despite-evidence-dan-rather-still-defending-fake-rathergate-story/
Query: will some judge some day object if Biden’s DOJ seeks to quash the plea deals that AG Barr is setting up now, and set his people free?
I just had a thought which is presumably not original, but even so, I thought I’d get it out before I forget. (“Well, if somebody else already thought of it first, why don’t you just post a link to the original, you crazy person?” I agree it would be more my style to do so, provided that I knew where in the wide world that original were to be found. So you’re stuck with me.)
The way that things in our system of government have evolved, the courts are essentially functioning as super-legislatures, especially but by no means only SCOTUS. It strikes me that for this reason, deciding who to vote for for President or Congress, for example, on the basis of what the candidates will do with respect to confirming certain types of judges based on ideological slant or similar is completely legitimate. That is no news flash, to be sure. But what I just realized is that the legislatures and so on which approve these judges have become analogous in practice to the Electoral College. That is to say, the U. S. Senate is now basically the Electoral College of the federal judiciary, which is the real de facto “legislature” (= lawmaking body) for a great many things. Thinking of it this way casts some parts of our country’s political processes in a new light for me.
I suppose the Senate could also be thought of as an Electoral College for those parts of the federal bureaucracy that are appointed subject to confirmation. Thus, the two arms of the real government – the judiciary and the administrative state – give a different sort of significance to the Senate in this light.
Neo,
You may be aware of Josh Blackman, a young but rising law professor at a small law school down near Houston. He blogs regularly at Volokh Conspiracy now, which I heartily recommend.
Anyway, he has his con law students read the Articles of Confederation, the Declaration of Independence, and the Constitution before the very first day of con law class. Unfortunately, he’s in a distinct minority. And he leans conservative.
I highly recommend looking him up, he has a lot of stuff on YouTube. Really smart young whipper-snapper.
The Michael Flynn case is the US equivalent of the French Alfred Dreyfus affair. An innocent man is tortured by the legal system until penniless with all funds going to his persecutors as $1,000 an hour fees. Even when it is well known that he is innocent the torturers persist. Flynn has not been physically sent to Devil’s Island but the effect is the same. The stain on the legal system is indelible as his own defense team was threatened with charges by the DoJ prosecutors who withheld the exculpatory evidence as was allowed by Judge Sullivan.
aaCharley, America, land of the free and brave… right?