Tag Archives: Michael Flynn

Trump Law Update

You know that something is wrong when you have to watch the appellate courts to know what is happening in the White House.  And this week has already seen several interesting rulings.

The biggest — because it is from the full U.S. Circuit Court for the D.C. Circuit — concerns the Michael Flynn case.  As you may recall, Michael Flynn (National Security Advisor for a day) pleaded guilty to charges of lying to federal agents as part of the Mueller investigation.  After Mueller wrapped things up and turned things over to the career prosecutors, William Barr became Attorney General of Trump and decided to start undoing what he could of the Mueller investigation and prosecutions.  Rather than proceeding with sentencing of the admitted criminal, A.G. Barr is willing to allow Flynn to withdraw his plea on a flimsy theory and then dismiss the charges.  Because this seems fishy and motivated by something other than normal prosecution operations, the judge who took Flynn’s plea decided to appoint an attorney as amicus curiae (literally friend of the court) to brief why the plea should stand and the request to dismiss the case should be denied.  (This procedure is not unusual at tbe appellate level.  Typically, once or twice a year, the Supreme Court will appoint an attorney to defend a lower court decision when both sides contend that the decision below was erroneous.  Rarely does the appellate court side with the amicus, but it does make sure that the best arguments in favor of the lower courts decision are heard.)

Mr. Flynn and his friends in the administration did not like this road bump in their attempt to wipe away any incentive for Mr. Flynn to decide to start telling the truth about his ties to Russia; so Mr. Flynn filed what is called a petition for writ of mandamus (essentially an order directing a lower court or government agency to do a specific act which contrasts with an injunction which orders a party not to do something).  Mr. Flynn got very lucky with the initial panel assignment somehow ending up with the two Trump appointees to the D.C. Circuit on his three-judge panel.  And the initial panel voted 2-1 to grant the petition and order the trial judge to grant the motion to dismiss.  The rest of the judges on the D.C. Circuit on their own motion decided to take the case from the panel and conduct a rehearing “en banc” (that is in front of all of the regular judges of the court).  On Monday, the full D.C. Circuit issued its ruling — an 8-2 decision denying the petition. Continue Reading...

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Reckless Incompetence

For the past two weeks, almost every day has produced a stunning revelation about the current Administration.  By this point, it is crystal clear that the Liar-in-Chief is completely clueless about the many responsibilities of his job and simply does not care.  He is going to proceed full speed ahead — hoping that determination and arrogance will make up for any deficiencies in his knowledge about policy issues or protocol.

Most democracies have some institutional procedures that keep individuals from rising to the top of the government without sufficient experience in politics and government to assure a basic knowledge of how things work.   In a parliamentary system, the leaders of the major parties tend to have served several terms before becoming leader of their party.  Additionally, the leaders tend to have served on the leadership teams of their parties (having responsibility for several different policy areas including at least one major area) before running for and winning their party’s top spots.  In addition, there are procedures in place that allow a party to remove (albeit with some difficulty) a leader who is not doing a good job as prime minister.

Unfortunately for the U.S., our Constitution predates the modern era of parliamentary democracy.  Our framers did have the same type of concerns that have animated modern parliamentary government, but the development of national politics have undermined the procedures created by the framers.  The electoral college was supposed to assure a minimum level of competence in the presidency.  The thought behind the original language in Article II (two votes per elector, no more than one of which could be from the elector’s state) was that each elector would cast one vote for one of the leading politicians in that state and one vote for a politician with a  national reputation.  Barring a clearly obvious national candidate, no candidate would get a national majority and the House would pick between the top candidates.  This scheme depended upon the framers’ belief that politics would stay state-based and that the different state parties would not get together with similar groups from other states to from a national party that would be able to get electors in multiple states to support a national ticket.  That has left the burden on the parties to devise systems of choosing leaders that ensures competence in their presidential candidates, and — as the current incumbent shows — the Republican Party rules have failed in that regards. Continue Reading...

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