More briefs were filed in the Flynn case today.

First, we have Judge Sullivan’s response brief, which hammers home just how unbelievably radical it would be for the panel to grant this writ even though Judge Sullivan has decided nothing (except inviting amicus briefs, as the D.C. Circuit itself did, and issuing an (IMO) ill-advised OSC re contempt).

The rule calls for leave of court. That’s a provision that was added by the U.S. Supreme Court when the rule was promulgated. Leave of court means the court has a role in that decision. Exactly what the judge’s authority is, is an open question — but that he has *some* authority is beyond rational dispute.

And yet it’s being disputed.

Honestly, it’s almost like being in the Upside Down that we’re seeing such a ridiculous writ petition treated with this level of seriousness. I don’t blame Judge Sullivan or his lawyer for doing so; the panel hearing the petition has a track record for taking absurd Trumpy positions far more seriously than they ought to. But it’s frustrating because the correct answer is clear and obvious: the writ should be denied and Judge Sullivan should be allowed to proceed with the hearing.

Were Judge Sullivan to deny the Government’s motion, and Flynn to appeal, the case would be far more difficult and far closer. But this is not a close call. Not even remotely. The only reason it’s being treated as though it might be is because of the appellate judges involved.

I don’t like making predictions with such erratic jurists in control of the outcome. Were I to hazard any sort of prediction, it would be that the en banc court would take up any decision to grant the motion, while the full court would certainly take no action if the panel properly denies relief. But really, I’m out of the prediction business — so don’t take that as a prediction!

We also have a fiery amicus brief in the trial court from Judge Gleeson, the fella whom Judge Sullivan appointed to make the case against the Government’s position. Here’s the passage that is the most attention-getting:

The Court should deny leave because there is clear evidence of a gross abuse of prosecutorial power. Rule 48(a) was designed to “guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” In other words, the rule empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals. … That is what has happened here. The Government has engaged in highly irregular conduct to benefit a political ally of the President. The facts of this case overcome the presumption of regularity. The Court should therefore deny the Government’s motion to dismiss, adjudicate any remaining motions, and then sentence the Defendant.

Yowch! That is a stinging accusation. And I judge it to be entirely accurate. The main reason is because their stated reason for the dismissal request — a sudden about-face on the issue of the statements’ materiality — is laughably incredible:

That is about as straightforward a case of materiality as a prosecutor, court, or jury will ever see. In asserting otherwise, the Government struggles mightily to argue that Flynn’s false statements neither affected nor could have affected the FBI’s investigation of his and his colleagues’ potential ties to the Russian government. Even taken on their terms, these contortions are riddled with legal and factual errors (and are contradicted by the Government’s position in other cases). But more fundamentally, under the governing law — as stated by the D.C. Circuit, this Court in this very case, the Government’s prior briefs in this case, and the Government’s briefs in many other recent cases — the facts on which the Government relies to undermine materiality are irrelevant.

They are changing their approach to the law for one person and one person only: a crony of the President. It’s about a corrupt a move as I have seen from DoJ as I can remember, and only the ignorant, the hopelessly partisan, or (most often) people sharing both characteristics are completely comfortable with it. The rest of us are sickened, but will be interested to see how arguments go on Friday.

[guest post by Dana]

As noted earlier this week, Trump is set to resume campaign rallies this month. Unfortunately, the clueless campaign has decided that the fist rally will take place in Tulsa, on June 19:

President Donald Trump will host his first rally in months next week in Oklahoma, and he has plans to visit four other states in the coming weeks as his campaign prepares to relaunch in-person rallies, he said Wednesday.

The first rally will take place in Tulsa, Oklahoma, on June 19. Ahead of a meeting with African American leaders at the White House, Trump said he also plans to visit Florida, North Carolina, Arizona and Texas. The President has not held a rally since early March, when all in-person campaign events halted due to the coronavirus pandemic.

“We’re going to start our rallies back up now. We’ve had a tremendous run at rallies,” Trump said.

More:

The president made the announcement at a roundtable with African American leaders at the White House, hailing the “great job” that Oklahoma has done combating coronavirus. As of Tuesday, Oklahoma had recorded 353 coronavirus deaths and 7,363 positive cases.

So what’s the big deal, you might ask? Well, June 19 is not just another day in the year. June 19 is known as Juneteenth, or Freedom Day:

Juneteenth is the oldest nationally celebrated commemoration of the ending of slavery in the United States. Dating back to 1865, it was on June 19th that the Union soldiers, led by Major General Gordon Granger, landed at Galveston, Texas with news that the war had ended and that the enslaved were now free. Note that this was two and a half years after President Lincoln’s Emancipation Proclamation – which had become official January 1, 1863. The Emancipation Proclamation had little impact on the Texans due to the minimal number of Union troops to enforce the new Executive Order. However, with the surrender of General Lee in April of 1865, and the arrival of General Granger’s regiment, the forces were finally strong enough to influence and overcome the resistance.

Juneteenth was made a legal holiday in Texas in 1980. The holiday honors African American freedom and achievements.

And as far as Tulsa being the designated site for the rally, Tulsa has an ugly history involving black residents. In 1921, the town was the site of a horrific massacre of black residents:

During the Tulsa Race Massacre (also known as the Tulsa Race Riot), which occurred over 18 hours on May 31-June 1, 1921, a white mob attacked residents, homes and businesses in the predominantly black Greenwood neighborhood of Tulsa, Oklahoma. The event remains one of the worst incidents of racial violence in U.S. history, and one of the least-known: News reports were largely squelched, despite the fact that hundreds of people were killed and thousands left homeless.

Cause of the massacre:

On May 30, 1921, a young black teenager named Dick Rowland entered an elevator at the Drexel Building, an office building on South Main Street. At some point after that, the young white elevator operator, Sarah Page, screamed; Rowland fled the scene. The police were called, and the next morning they arrested Rowland.

By that time, rumors of what supposedly happened on that elevator had circulated through the city’s white community. A front-page story in the Tulsa Tribune that afternoon reported that police had arrested Rowland for sexually assaulting Page.

Read a detailed account of the massacre here. It was a hideous event that seems to have faded into the historical past.

So what to make of Trump’s campaign selecting Tulsa and Juneteenth for his rally? While the reports make it clear that he discussed his plans with leaders of the black community and received their seal of approval, it is unclear on who those leaders were, and whether they were Trump loyalists or members of the larger community. I have no idea what the behind-the-scenes talks were like, but from the outside looking in, it seems that, at the very least, it’s a bit of a misstep to couple that specific date and location for a Trump rally. This especially as our nation is currently in the midst of a painful season as we work out difficult racial issues, and how law enforcement treats black Americans. I just don’t see how this will be taken as anything but an intentional provocation by those outside of the Trump sphere. But I really don’t know. What I do know, though, is that I am fresh out of any benefit of the doubt these days.

–Dana

[guest post by Dana]

As the George Floyd protests continue across the nation, there has been a renewed push to rename U.S. military installations that are named after Confederate leaders. David Petraeus explained why he thinks the time is right to make such a change:

As I have watched Confederate monuments being removed by state and local governments, and sometimes by the forceful will of the American people, the fact that 10 U.S. Army installations are named for Confederate officers has weighed on me.

…

The United States is now wrestling with repeated instances of abusive policing caught on camera, the legacies of systemic racism, the challenges of protecting freedoms enshrined in the Constitution and Bill of Rights while thwarting criminals who seek to exploit lawful protests, and debates over symbols glorifying those who fought for the Confederacy in the Civil War. The way we resolve these issues will define our national identity for this century and beyond. Yesterday afternoon, an Army spokesperson said that Secretary of the Army Ryan McCarthy is now “open to a bipartisan discussion” on renaming the bases. That’s the right call. Once the names of these bases are stripped of the obscuring power of tradition and folklore, renaming the installations becomes an easy, even obvious, decision.

…

For an organization designed to win wars to train for them at installations named for those who led a losing force is sufficiently peculiar, but when we consider the cause for which these officers fought, we begin to penetrate the confusion of Civil War memory. These bases are, after all, federal installations, home to soldiers who swear an oath to support and defend the Constitution of the United States. The irony of training at bases named for those who took up arms against the United States, and for the right to enslave others, is inescapable to anyone paying attention. Now, belatedly, is the moment for us to pay such attention. [emphasis added]

…

Plainly put, Lee, Bragg, and the rest committed treason, however much they may have agonized over it.* The majority of them had worn the uniform of the U.S. Army, and that Army should not brook any celebration of those who betrayed their country.

The quest to rename these installations is not new. Back in 2015 after Dylann Roof opened fire at Emanuel African Methodist Episcopal Church in South Carolina, the Pentagon was pressed to remove the names of Confederate leaders from its facilities, but it was a no-go. Here was how the Pentagon justified the decision at the time:

“These historic names represent individuals, not causes or ideologies. It should be noted that the naming occurred in the spirit of reconciliation, not division,” said Brigadier General Malcolm Frost, the Army’s spokesman at the time.

[But can you really separate the individual from their cause or ideology? Doesn’t that which makes up the individual (foundational beliefs, principles, etc) determine or inform which ideology one might hold, or the causes they choose to support?]

Further:

Three years ago, following a rally of white supremacists and neo-Nazis in Charlottesville, Va., a Democratic lawmaker from New York, Rep. Yvette Clarke, introduced a bill requiring the defense secretary to change the names of installations “named after individuals who took up arms against the US in the Civil War.”

The Army had no comment that year.

In 2017, the Congressional Research Service looked into the issue. “The Department of the Army has no formal administrative process for renaming military installations,” it said. “Proponents of renaming the bases contend that there are noteworthy national military leaders from other conflicts who demonstrated selfless service and sacrifice. Opponents of renaming these installations cite the bureaucracy of creating a new review process and the difficulty of satisfying the various viewpoints over which names (if any) would be selected as subjects of contention.”

But the times are indeed changing: Both the Navy and the Marine Corps are already making changes that reflect concerns about the Confederate battle flag at military facilities:

Marine Commandant General David Berger last week prohibited the display of the Confederate battle flag at Marine installations — including on mugs, posters and bumper stickers.

…Navy Cmdr. Nate Christensen… said…, “The Chief of Naval Operations, Adm. Mike Gilday, has directed his staff to begin crafting an order that would prohibit the Confederate battle flag from all public spaces and work areas aboard Navy installations, ships, aircraft and submarines. The order is meant to ensure unit cohesion, preserve good order and discipline, and uphold the Navy’s core values of honor, courage and commitment.”

And while Army Secretary Ryan McCarthy and Defense Secretary Mark Esper have said they are open to the possibility of renaming the 10 Army installations, President Trump tweeted this morning, emphatically saying that the installations named after Confederate leaders would not be renamed:

–Dana

[guest post by Dana]

In the ongoing addition of businesses that are being allowed to reopen, California’s governor Gavin Newsom has thus far excluded nail salons from the approved list. As a result of the exclusion, the Vietnamese community has been seriously impacted. Three-quarters of the state’s 600,000 licensed manicurists are Vietnamese-Americans:

From the early days of the state’s shutdown, health officials made clear the particular risks in salons and barber shops, where services require close personal contact and take place indoors. Nail salons fell under that category.

But as the state has released guidelines for reopening more and more businesses, nail salons have been notably absent.

As The Los Angeles Times reported, an unsubstantiated comment by Mr. Newsom in early May tying the first community-spread coronavirus case to a nail salon was a gut punch for largely small, immigrant-owned businesses that were already reeling.

And here’s how it is hurting immigrant workers in the state:

David Chiu, a San Francisco state assemblyman who has been involved in those conversations, told me that the nail salon industry was “emblematic of the incredible gulf in our economy.”

And he said the pain for immigrant nail salon workers and entrepreneurs — most of whom are women of Asian descent — illustrated the ways the pandemic has especially hurt communities that were already vulnerable.

“These are workers and nail salon owners who have always been truly struggling,” he said. “Covid-19 has shone a bright spotlight on how challenging that struggle is.”

According to a 2018 report by the U.C.L.A. Labor Center, in partnership with the California Healthy Nail Salon Collaborative, almost 80 percent of nail salon workers are foreign born, and almost 80 percent are considered low wage, compared with 33 percent of workers across the U.S. economy.

On Saturday, more than 100 nail salon advocates protested in Orange County’s Little Saigon area:

Nail salon advocates held a rally Monday in the Little Saigon area of Orange County to call on California Gov. Gavin Newsom to address reports that the first community spread case of COVID-19 may not have occurred at a salon, and to announce a reopening plan for shops.

…

“Families are hurting, crying, losing income daily,” Linda Lan, a manicurist from the Bay Area, told the Los Angeles Times. “We still have no idea when we can return.”

One salon owner traveled from Carson to participate in the O.C. rally and told KTLA she owes three months of rent because she hasn’t been allowed to reopen.

A group of nail industry leaders dubbed Nailing it for America want Newsom to announce reopening guidelines and to address comments he made on May 7 about the first case of coronavirus community transmission happening at a nail salon.

The group says that some of Newsom’s senior officials admitted during a June 2 Zoom meeting with them that the May announcement was a mistake.

“It began with Gov. Newsom sharing inaccurate information on May 7 with devastating impacts on the beauty industry in California and with far-reaching repercussions across America,” a statement by Nailing it for America and cited by the Times said.

Newsom was asked about the officials’ Zoom meeting comments during a June 5 news conference but did not answer the questions, according to the group.

Nail salon owners are frustrated too because they have safety measures in place, and plan to adhere to any rules for reopening. So far though, there has been no move by the governor’s office to allow them to reopen.

From the governor’s press secretary:

“The Newsom Administration continues to engage with stakeholders in the nail salon industry to gather feedback and participate in constructive dialogue about reopening — with a focus on public health and safety. We remain committed to keeping the lines of communication open as we look to modify our Stay at Home order.”

It’s interesting that this industry remains closed. In non-pandemic times, manicurists always wear masks, and there is typically a small fan on the table to help with the fumes from nail solutions. Many salon owners have said that they have already installed clear plastic shields at each station to limit direct contact with customers. Pedicures provide even more distance between manicurist and customer. If hairdressers and barbers are able to reopen, and cut and style hair within inches from the client’s face, why shouldn’t nail salons be allowed to open as well?

In the meantime, nail salon owners have now filed a second lawsuit against California to reopen. According to one salon owner, Newsom’s accusation against the industry “put a target on their backs”.

[Note: The reason for such a high rate of Vietnamese-American manicurists in the state goes back to the fall of Saigon in 1975. When Vietnamese refugees began flooding into the U.S., it happened to coincide with the societal change in seeing more middle-class women going out to get manicures. Given that one did not have to be proficient in English, and the overhead of opening a salon was reasonable at the time, many refugees became salon owners and manicurists.]

–Dana

[guest post by JVW]

From Fox News:

The last person to receive a Civil War-era pension died in North Carolina last week, according to reports.

The Wall Street Journal reported that Irene Triplett died at a nursing home in Wilkesboro on May 31. She was 90.

Triplett’s father, Moses “Mose” Triplett, was a confederate soldier who deserted in 1863 and joined Union forces the following year, according to The Journal. The Wilkes-Journal Patriot reports that he married Irene’s mother Elida Hall in 1924 when he was 78 and she was 28. Mose Triplett was 83 when his daughter was born.

[. . .]

Mose Triplett’s first wife had died a few years before his marriage to Hall, according to the Wilkes-Journal Patriot, which notes that he began receiving a pension for his service in the Union Army in 1890. He died in 1938 at age 92, just a few days after attending a reunion in Gettysburg marking the 75th anniversary of the battle there.

Irene Triplett had been receiving a monthly pension of $73.13 from the Department of Veterans Affairs, according to The Journal.

The Civil War seems to us so far away, yet there you go. This is also a prime moment to reflect on the fact that two grandsons of our tenth President are believed to still be living. John Tyler was born in 1790, in the second year of George Washington’s first term as President. Mr. Tyler himself served in that office from 1841-45, moving up from Vice-President upon the death of William Henry Harrison. His first wife, with whom he had eight children, died in 1842 after suffering a stroke. Two years later, President Tyler married twenty-four year old Julia Gardiner, with whom he would issue an additional seven children.

One of those children by his second wife, a son named Lyon Gardiner Tyler, future president of the College of William and Mary, was born in 1853. After the death of his first wife, Lyon Tyler would marry a woman 35 years his junior and father three sons, one of whom died in infancy. The surviving two sons, Lyon Gardiner Tyler Jr. (born 1924) and Harrison Ruffin Tyler (born 1928), are both apparently still with us today.

In many ways we are still something of a young country.

– JVW