Category Archives: US Constitution

Judge Sullivan: Beyond the Pale

5/15/220 – WSJ.

In his zeal to convict Michael Flynn of something, federal Judge Emmet Sullivan is harming his own reputation. He’s also violating the law, as he’d know if he had read Supreme Court Justice Ruth Bader Ginsburg’s opinion last week overturning the Ninth Circuit Court of Appeals.

On Wednesday Judge Sullivan appointed an ex-judge to explore whether former Mr. Flynn should be held in criminal contempt for perjury even though prosecutors have sought to drop the charges against the former national security adviser. The relevant case is U.S. v. Sineneng-Smith, in which the Supreme Court reversed a Ninth Circuit ruling striking down a criminal statute involving immigration as unconstitutionally overbroad. The case was overturned because instead of adjudicating the issues raised by the parties, the Ninth Circuit panel invited outside groups to brief them about a defense the defendant never raised.

This is akin to what Judge Sullivan is trying to do with Mr. Flynn by asking outside parties to make new arguments for prosecution—and even appointing former judge John Gleeson, who has shown clear public bias (in an op-ed) against Mr. Flynn, to make the case. Judge Sullivan’s abuse is more egregious given that the real prosecutors now say they don’t believe they can honestly prosecute Mr. Flynn.

Justice Ginsburg’s argument is that the job of judges is to judge, not to substitute for prosecutors. As she wrote in a 2008 case, in our system of justice “courts follow the principle of party presentation, i.e., the parties frame the issues for decision and the courts generally serve as neutral arbiters of matters the parties present.” Last week in Sineneng-Smith, she wrote that “the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion.”

The 9-0 ruling doesn’t bode well for Judge Sullivan on appeal, and it makes us wonder if in his rage at the prosecution he has lost his legal, and maybe emotional, bearings. Judge Sullivan is acting like Justice Ginsburg said the Ninth Circuit judges did: “beyond the pale.”

Source: Judge Sullivan vs. Justice Ginsburg – WSJ

Share

Sweeping Restrictions need Accountability

“Our country and our Constitution are finished, however, if the most sweeping, authoritarian and undemocratic restrictions on individual liberty ever contemplated are not subjected to legal challenge and accountability.”

====

WSJ  –  5/13/20  by. Holman W Jenkins, Jr.

A CEO has obligations to share-h olders, among them not to let anybody take anything of value from the company that the taker has no right to take.
That Elon Musk’s resistance of California’s pandemic shutdown may well be due to fear that his company cannot survive if it doesn’t continue pulling in cash from delivering cars merely gives him a material and compelling justification for his defiance. He should protect his company’s right to do business and survive against what he considers unlawful and unjustified prohibitions. He would be derelict not to do so.

From the start of the crisis, the American Civil Liberties Union has advertised on its website: “The ACLU will be watching closely to make sure the government’s response is scientifically justified and no more intrusive on civil liberties than absolutely necessary.”

Its definition of scientifically justified appears to be about as rigorous as the media’s, which means anything the hive mind has somehow decided requires fashionable conformity. The irony is that the science has been speaking clearly and consistently, but the public and a virtue-signaling media haven’t wanted to hear it.

For weeks, a CDC web page, which remains widely quoted by other government and health-care websites, advised, “In the coming months, most of the U.S. population will be exposed to this virus.”

When the lockdowns started, I could write without qualification: “Experts now agree the virus’s spread can be slowed but not contained. It will take its place among mostly seasonal respiratory infections.”  Our flatten-the-curve strategy, likewise, was premised scientifically on slowing the virus’s spread in line with local hospital capacity. Unthinkable would have been sweeping and indiscriminate bans on economic activity in places not yet touched or barely touched by the virus.

A writer in the Atlantic suggests conservatives favor opening the economy and want the old and ill to take one for the team. My own email indicates dissent from the lockdowns has nothing to do with being a conservative and a lot to do with being a physician or immunologist. By focusing protection on the elderly and vulnerable, we bring closer the day when the elderly and vulnerable won’t need protecting because the epidemic has run out of a critical mass of people to infect.

An unusually sensible writer in the New York Times points out that pandemics in the past have ended not with the virus going away—the 1918, 1957 and 1968 strains are still with us. They ended when people decided to accept and adapt to the virus’s existence.

Which brings us to Mr. Musk. He is not the only business operator, but perhaps the only one running a public company, who has decided to resist his livelihood being destroyed by infringements on the most basic rights of U.S. citizens: to leave their homes, to engage in trade, to work and receive pay.  We expect Mr. Musk to be grandiose: Let me be the first to be arrested, he tweeted, Patrick Henry-like.

We expect legal plaintiffs of every description to be self-interested—his defiance has clearly been accentuated by Michigan’s decision to let his competitors reopen their auto plants. These infringements, it is vaguely but confidently asserted by politicians and their press cheerleaders, are justified by the science. Well, let’s test this idea in court.

You will be hard-pressed to find a scientist anywhere who maintains we don’t need to learn to live with the virus. Our incoherent lockdowns plainly lacked a scientific rationale for how to reopen when most of the public remains uninfected. An MIT group calculates that the desired benefits in terms of hospitals and the elderly could have been achieved far more cheaply by isolating the vulnerable rather than everybody, and with far less damage to civil liberties.

For some families, sheltering in place now appears to have increased their risk rather than reduced it. For most individuals, the danger was flu-like, which never before led to them being stripped of basic rights. Banning outdoor activities appears to have been absurd overkill. The notion that a vast testing and contact-tracing scheme is plausible and could halt the epidemic, much less is a requisite condition to resume most of our economic freedoms, would likely fall to sixth-grade math. Start with the challenge of identifying millions of asymptomatic carriers among millions of others whose symptoms are due to the common cold or flu.

That politicians took steps out of panic is understandable. That these steps were unjustified by the science that existed then much less now doesn’t mean their motives were bad. We can accept, especially in a panic, that the media will eschew complexity in favor of a story of an enemy who must be vanquished.

Our country and our Constitution are finished, however, if the most sweeping, authoritarian and undemocratic restrictions on individual liberty ever contemplated are not subjected to legal challenge and accountability.

BUSINESS WORLD
By Holman W. Jenkins, Jr.

Source: The Wall Street Journal

Share

Caesar, God and the Lockdowns

I don’t understand all the motives, but there are elements in the USA that are inclined to restrict religious activity more strictly that non-religious activity.  This is unconstitutional and the people should push back.  mrossol

====

WSJ. – 5/12/20

As governors consider how to ease their lockdowns, they might take a moment to read a pair of unanimous opinions this month from the U.S. Court of Appeals for the Sixth Circuit. They rebuke the idea of giving office parks greater pandemic leeway than churches.

A March order by Kentucky Governor Andy Beshear barred “mass gatherings,” including religious ones. Offices and factories were exempt if they followed “appropriate social distancing.” Other orders said that only “life sustaining” enterprises could stay open. That included law firms, laundromats and liquor stores, but not churches.

When Maryville Baptist Church in Louisville held an Easter service, some worshipers went inside. But a loudspeaker in the parking lot allowed sequestered faithful to stay in their cars. State police placed notices on vehicles, including occupied ones, explaining that congregants were breaking the law. The police took down license-plate numbers. The church sued.

“It’s not always easy to decide what is Caesar’s and what is God’s—and that’s assuredly true in the context of a pandemic,” a Sixth Circuit panel wrote on May 2. That said: “The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. Are they not often the same people, going to work on one day and attending worship on another?

Or this comparison: “Why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers?” The question “is more difficult,” the court concluded, for gatherings inside a sanctuary. But it temporarily blocked Kentucky from prohibiting the drive-in service. The Governor, in a subsequent court filing, pointed to news reports of 50 to 100 people inside the church.

The Sixth Circuit followed up with another opinion on May 9 freeing the church’s in-person services. “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew?” the court wrote in Roberts v. Neace. “While the law may take periodic naps during a pandemic, we will not let it sleep through one.”

Gov. Beshear has now excluded churches from his original order. Kudos to the judges for a reminder that the Constitution requires neutral treatment of religion, even in a pandemic.

Source: Caesar, God and the Lockdowns – WSJ

Share

The Vindication of Michael Flynn

“If they [bad political, partisan actors] can do it to an honorable Army general, they can do it to you.”  I applaud this result, but my paranoia remains.  There remains much house cleaning yet to be done in the FBI and Justice Department.   mrossol

====

WSJ  –  5/12/2020

The Justice Department dropped its case against Michael Flynn on Thursday, “with prejudice,” in a legal filing that should echo far beyond this tragedy of justice delayed. The latest evidence further undermines the credibility of James Comey’s FBI, special counsel Robert Mueller, and the entire “Russia collusion” investigation.

The retired Army general had initially pleaded guilty to making false statements to the FBI on Jan. 24, 2017, when two agents interviewed him at the White House shortly after he took over as Donald Trump’s national security adviser. But he later reversed his plea as new information emerged that the FBI may have tried to entrap him.

The documents filed on Thursday in federal court vindicate the general’s reversal. Justice said the FBI’s interview of Mr. Flynn was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” and that the interview was not “conducted with a legitimate investigative basis.”

We recommend the filing for readers who think this couldn’t happen in America. The filing recounts how the FBI had concluded in late 2016 that there was no evidence that Mr. Flynn had colluded with Russia. But the FBI kept the investigation open after it received a transcript of Mr. Flynn’s conversation with the Russian ambassador to the U.S.

Mr. Comey and his loyalists then set up Mr. Flynn in an interview despite having no legal basis. The documents show that Mr. Comey told his deputies not to inform the White House general counsel of the visit and not to tell the White House about his conversation with the ambassador. They also show that Mr. Comey worked around senior Justice officials, including Acting Attorney General Sally Yates, who thought the White House should be informed. As he did with Attorney General Loretta Lynch on Hillary Clinton’s emails, Mr. Comey acted as if he was a law unto himself.

At the time the agents admitted they did not think Mr. Flynn was lying to them. But as the Justice filing notes, without a legitimate investigative purpose, whether Mr. Flynn was lying was immaterial. He should never have been prosecuted.

Yet Mr. Mueller, who knew all this soon after becoming special counsel, pursued Mr. Flynn, threatening him and his son with ruin until he got the guilty plea. The prosecutor on the case, Brandon Van Grack, was part of Mr. Mueller’s team and consistently denied there was relevant material the government had not turned over to the defense.

But surely the lack of a legal predicate for the interview was exculpatory. Mr. Van Grack told the court Thursday he is withdrawing from the case, but an investigation is warranted to see if he lied to the court. Mr. Mueller’s reputation also stands self-besmirched, and the entire Russia collusion probe looks even more illegitimate and political.

All of this came to light after Attorney General Bill Barr assigned another U.S. Attorney, Jeffrey Jensen, to look at the Flynn case anew. The partisan press will portray this as a political decision done to please Mr. Trump. But Mr. Jensen is a long-time veteran of Justice and the FBI. He is not someone who would seek to damage those institutions for political purposes.

Mr. Jensen put it this way in a statement Thursday: “Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case. I briefed Attorney General Barr on my findings, advised him on these conclusions and he agreed.”

Messrs. Jensen and Barr deserve credit for a brave decision that will not be popular with some prosecutors and certainly not with the Democratic media. But as the filing notes, the cause of justice is paramount, even after a guilty plea has been made, if the evidence demands a reversal.

There is still much we don’t know, and many Russia-related documents we still do not have, and we hope Mr. Barr will continue to make them public as he cleans up after one of the most shameful episodes in FBI and Justice Department history. For now, at least Michael Flynn can get his life and reputation back.

Source: The Vindication of Michael Flynn – WSJ

Share