Patterico's Pontifications

7/30/2020

D.C. Circuit Decides to Hear Michael Flynn Case En Banc

Filed under: General — Patterico @ 5:46 pm



This likely means a reversal. WaPo:

A federal appeals court in Washington will take a second look at a judge’s effort to scrutinize the Justice Department’s decision to drop its case against President Trump’s former national security adviser Michael Flynn.

The full U.S. Court of Appeals for the D.C. Circuit agreed Thursday to revisit U.S. District Judge Emmet G. Sullivan’s plan to examine the politically charged matter, reviving the unusual case testing the limits of the judiciary’s power to check the executive branch.

The court’s brief order set oral arguments for Aug. 11. The decision to rehear the case before a full complement of judges wipes out the June ruling from a three-judge panel that ordered Sullivan to immediately dismiss the case and said Sullivan was wrong to appoint a retired federal judge to argue against the government’s move to undo Flynn’s guilty plea.

Here is the court’s order:

Always trust content from Patterico!

Well, er … maybe not always. After all, I did blow the original call on the panel decision after hearing the oral arguments. Judge Henderson, whom I initially had pegged as a partisan hack, did a bait and switch at oral argument making her sound like a vote to deny Flynn’s petition. The day the decision came out, I acknowledged my poor prediction, and showed that I had learned nothing by turning right around and issuing another one in the very same post:

I should have stayed out of the prediction business with this panel decision, and I should not be making further predictions on the case, but here is my prediction on the case. The full court will stay this order, rehear the case en banc, and reverse the decision.

So far I am two for three, and today’s order (especially the wording of the order) seems like a pretty strong indication that I will go three for three (making my total average three for four, since I blew the panel decision prediction, but a .750 batting average will get you millions in the major leagues. OK, OK, I’ll stop making it about me. No, wait, I need to quote myself just one more time).

On June 24, I wrote a post titled Court Decision Favoring Flynn Is Dishonesty of the Sort We Have Not Seen Since Impeachment, in which took apart Judge Rao’s majority opinion, saying this:

Judge Rao’s opinion is an absolute travesty — a collection of dishonest rhetorical moves that are unworthy of an Article III judge sitting on one of the most prestigious federal appellate courts in the nation. Judge Rao and Judge Henderson should be ashamed of themselves, and I hope they get slapped down by the en banc court as they so richly deserve to be.

I stand by that analysis.

So what about the wording of today’s order suggests a likely reversal?

As I said in a post addressing the crowd who thought Rao’s order was the bee’s knees because SePeRaShuN uV pOwERz, mandamus relief “is obviously not available for technical reasons having to do with who is injured and alternative means of addressing any injury.” And what does the court’s order above ask the parties to focus on? Why, it says this: “The parties should be prepared to address whether there are ‘no other adequate means to attain the relief’ desired.” That is the issue on which the full court will reverse the panel, and it is the same point I identified in June (and it’s not like I’m a legal genius for identifying it; it’s obvious if you have followed this at all).

People need to keep in mind that in the current posture, the court is still addressing a narrow and very clear issue: should the D.C. Circuit have intervened before Judge Sullivan even had a chance to rule? This is an easy question to answer if you’re not blinded by partisanship: of course not! But the resolution to that question does not mean that Judge Sullivan could get away with denying the Government’s motion to dismiss … or even, necessarily, that he is going to try.

All an en banc reversal would mean at this stage is that Judge Sullivan would get a chance to do the job assigned to him under Rule 48(a) of the Federal Rules of Criminal Procedure, and determine whether there is an adequate basis to grant leave of court to dismiss the case.

Me, I don’t think there is. I think he should deny the motion. But my view is distinctly in the minority, and I really have no idea what Judge Sullivan will do.

But at this point it seems increasingly clear that it’s going to be up to him in the first instance. And that is a Very Good Thing for the usual application of the rule of law.

Shocker: NBA’s Commitment to Social Justice Not Operative in China [Updated]

Filed under: General — JVW @ 2:21 pm



[guest post by JVW]

Update, 7:30 pm: Somebody is apparently feeling the heat and has gone to CYA mode. Earlier today some intrepid fans discovered that you cannot order a custom NBA jersey from the online Fanatics NBA store with “Free Hong Kong” printed on the back in the name area. After several people began tweeting about this, including Florida Governor Rick Scott and Missouri Senator Josh Hawley, the ban was quickly (and quietly) lifted. According to this Fox News report, the NBA is blaming the problem on Fanatics, but given the NBA’s craven nature it’s not hard to imagine that they were behind the original ban.

—- Original Post —-

Today begins the resumption of the NBA regular season after a four-plus month coronavirus shutdown. Last night ESPN let loose with a bombshell report about the mistreatment of basketball prospects in NBA-sponsored youth basketball academies in China. The report does not paint a flattering picture [all bolded emphasis is added by me]:

Long before an October tweet in support of Hong Kong protesters spotlighted the NBA’s complicated relationship with China, the league faced complaints from its own employees over human rights concerns inside an NBA youth-development program in that country, an ESPN investigation has found.

American coaches at three NBA training academies in China told league officials their Chinese partners were physically abusing young players and failing to provide schooling, even though commissioner Adam Silver had said that education would be central to the program, according to multiple sources with direct knowledge of the complaints.

The NBA ran into myriad problems by opening one of the academies in Xinjiang, a police state in western China where more than a million Uighur Muslims are now held in barbed-wire camps. American coaches were frequently harassed and surveilled in Xinjiang, the sources said. One American coach was detained three times without cause; he and others were unable to obtain housing because of their status as foreigners.

That’s right: the league which believes that pampered millionaires are appropriate figures to instruct us in the intricacies of daily interactions taking place in high-crime areas between law enforcement and members of underserved communities is standing by while business partners from a totalitarian police state physically abuse minors, some of who are from ethnic minorities within China’s borders. Flash back to this past fall when Houston Rockets General Manager Daryl Morey tweeted out support for dissidents in Hong Kong fighting the repressive policies of Beijing, which caused the communist government to pull NBA games off of state television and ban the sale of Houston Rockets gear within the country. This in turn led to star players such as LeBron James and James Harden criticizing Morey for taking the side of a beleaguered people fighting for freedom, partly because it hurt their ability to sell signature overpriced athletic wear made by low-paid Indonesians working for a grandiose shoe company who also styles themselves as painfully woke.

Now of course those same NBA players and coaches have adopted in toto the agenda of Black Lives Matter, treating fans to pre-approved social justice messages in place of the player’s name on the backs of uniforms, but “Free Hong Kong” and “Uyghurs Have Rights Too” are not among them. Nor is “Hands Off of Young Athletes.”

One American coach who worked for the NBA in China described the project as “a sweat camp for athletes.”

At least two coaches left their positions in response to what they believed was mistreatment of young players.

One requested and received a transfer after watching Chinese coaches strike teenage players, three sources told ESPN. Another American coach left before the end of his contract because he found the lack of education in the academies unconscionable: “I couldn’t continue to show up every day, looking at these kids and knowing they would end up being taxi drivers,” he said.

Not long after the academies opened, multiple coaches complained about the physical abuse and lack of schooling to Greg Stolt, the league’s vice president for international operations for NBA China, and to other league officials in China, the sources said. It was unclear whether the information was passed on to NBA officials in New York, they said. The NBA declined to make Stolt available for comment.

The NBA salivates over the 1.4 billion residents of China, where 150 million of them watch an NBA game at some point over the course of the year. ESPN, who is an NBA broadcast partner and thus has a seat on the league’s board of directors, estimates that the Chinese market provides $5 billion in revenue to the league each season. In addition to the marketing opportunities, NBA teams dream of finding the next Yao Ming, who averaged nearly 20 points and 10 rebounds over a seven-year NBA career and cemented the relationship between the league and the communist dictatorship for good. Indeed, the coaches whom the NBA sent overseas to work these academies report that they were given instructions to be on the lookout for “the next Yao.”

But the NBA would learn the lesson that Apple, Google, and so many other U.S. companies have learned about engaging in commerce in a semi-closed society: business is done on their terms, not yours.

The NBA employees who spoke with ESPN said many of the league’s problems stemmed from the decision to embed the academies in government-run sports facilities. The facilities gave the NBA access to existing infrastructure and elite players, [NBA Chief Operating Officer Mark] Tatum said. But the arrangement put NBA activities under the direction of Chinese officials who selected the players and helped define the training.

“We were basically working for the Chinese government,” one former coach said.

And forget the idea of finding and developing the new Yao. The Chinese government is keeping their most elite young players in government-sponsored basketball academies far away from the American coaches, leaving the NBA to deal primarily with second-tier youth players. Hearing stories of player abuse, heavy surveillance and occasional harassment of U.S. coaches, abandonment of the promise to provide an education for the young athletes, and lack of access to the cream of Chinese youth basketball, and facing bipartisan criticism from Congress about their cozy and subservient relationship with a repressive dictatorship, the NBA has apparently quietly pulled the plug in Xinjiang:

Sometime shortly after Morey’s October tweet, the [Xinjiang] academy webpage was taken down.

Pressed by ESPN, Tatum repeatedly avoided questions on whether the widespread human rights abuses in Xinjiang played a role in closing the academy, instead citing “many factors.”

“My job, our job is not to take a position on every single human rights violation, and I’m not an expert in every human rights situation or violation,” Tatum said. “I’ll tell you what the NBA stands for: The values of the NBA are about respect, are about inclusion, are about diversity. That is what we stand for.”

Nury Turkel, a Uighur American activist who has been heavily involved in lobbying the U.S. government on Uighur rights, told ESPN before the NBA said it had left Xinjiang that he believed the league had been indirectly legitimizing “crimes against humanity.”

One former league employee who worked in China wondered how the NBA, which has been so progressive on issues around Black Lives Matter and moved the 2017 All-Star Game out of Charlotte, North Carolina, over a law requiring transgender people to use bathrooms corresponding to the sex listed on their birth certificates, could operate a training camp amid a Chinese government crackdown that also targeted NBA employees.

“You can’t have it both ways,” the former employee said. “… You can’t be over here in February promoting Black History Month and be over in China, where they’re in reeducation camps and all the people that you’re partnering with are hitting kids.”

Unsurprisingly, in order to avoid embarrassing their Chinese clients the NBA made no announcement about the closure of the Xinjiang academy, and they deny knowledge of the harassment of league coaches even though one of them, Corbin Loubert, confirmed these practices in a tweet to CNN last year. The decision to close the academy appears to have been made on the spur of the moment, not after a period of careful deliberation. Up until the moment the academy was shuttered, an anonymous coach told ESPN, the league was still trying to hire staffers to send to Xianjiang. And as far as I can tell, the other two academies in Zhejiang and Shandong remain open, as does the NBA China office in Shanghi.

Business interests who want to operate in China should carefully consider the ramifications of doing so, and they should have the honesty to reconsider their strategy of hyper-woke marketing at home when they enable brutally repressive regimes in far-flung corners of the world. Just as Apple’s Tim Cook ostentatiously calls for boycotts of U.S. states which don’t conform to the Silicon Valley ethos on sex and gender while simultaneously seeking to sell his product to countries where homosexuality is still illegal and in some cases punishable by death, the NBA needs to think through its abject pandering to the shrillest elements of the wokerati while happily partnering with deep-pocketed police states. I’ve come to expect so little from multi-billion-dollar entertainment conglomerates, but is it too much to ask that “Uyghur Lives Matter” be stenciled on an NBA court once or twice this season?

– JVW

George Bush And His Beautiful Tribute To John Lewis At Today’s Funeral Service

Filed under: General — Dana @ 12:12 pm



[guest post by Dana]

He avoids politics, and instead focuses on the full measure of an incredible man who wholeheartedly served the nation, and loved his God:

Listen, John and I had our disagreements, of course. But in the America John Lewis fought for, and the America I believe in, differences of opinions are inevitable elements and evidence of democracy in action. We the people, including congressmen and presidents, can have differing views on how to perfect our union while sharing the conviction that our nation, however flawed, is at heart a good and noble one.

Amen.

–Dana

Herman Cain Dies of COVID-19

Filed under: General — Patterico @ 8:29 am



Herman Cain has died of COVID-19.

After opposing wearing masks:

This is shocking and horrible. His death should not be viewed as just retribution — although I predictably see lefties doing so online — but as the very sad event it is.

That said, while masks are not the be-all and end-all, they do seem to serve an important purpose. I hope this tragic ending to Cain’s life serves as a warning to people now taking the stance he so recently took.

I do not think it will.

UPDATE: As I said on Twitter:

Radical leftists will cheer; radical Trumpists will fail to learn the lesson. Radicalism is a disease, and it kills both bodies and souls.

Trump: “With Universal Mail-In Voting, 2020 Will Be Most INACCURATE & FRAUDULENT Election in History”

Filed under: General — Dana @ 7:11 am



[guest post by Dana]

Going all in, I see:

Interestingly, the President’s tweets came right after the latest numbers were reported:

The U.S. economy shrank by a shocking 32.9 percent annual rate in the second quarter—the biggest decrease since record-keeping began. Bloomberg News reports economists had predicted a 34.5 percent slump ahead of Thursday morning’s announcement from the Commerce Department. It’s said to be the biggest hit to the U.S. economy since quarterly records starting being routinely estimated back in 1947. The plummet was the result of dozens of U.S. states going into lockdown as the coronavirus pandemic fanned out across the country; economists have said they expect growth to return for the third quarter, which began at the beginning of July.

New jobless claim figures out Thursday also painted a bleak picture of the U.S. economy, with initial applications last week rising to 1.43 million. The Wall Street Journal reported the new filings appear to show the surge in new infections is slowing the recovery in several states.

The presidential election is now 96 days away.

Psst, President Trump:

3 U.S. Code § 1. Time of appointing electors. The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.

–Dana

UPDATE BY PATTERICO: As usual, the biggest danger is posed not by the President alone, but by the President if/when supported by a sizable group of committed supporters. If Trump loses, he won’t accept it as the result of a fair election. He’s Trump. He always wins unless he is mistreated in a very very unfair way, maybe the most unfair way anyone has ever heard of.

But “removing him” from office is a simple matter of sending in people with guns to politely escort him out. And he knows that. So he won’t refuse to leave.

Unless…

Unless he whips up a sizable part of the country into believing that the election has been stolen. If that happens, his ability to wreak havoc increases. Just as his ability to wreak havoc in office has always depended on the support of those same people.

And the closer the election is, the better the chance that he can convince people it was stolen.

Hugh Hewitt once wrote a book titled “If It’s Not Close, They Can’t Cheat.” It’s also true that if it’s not close, it’s harder to say the winner cheated.

This is why it’s particularly important to beat Trump badly. Since we know he will claim he was the victim of cheating, the margin has to be decisive, to prevent a sizable majority of the country from believing his claims and rising up with violence to support his claim.


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