[guest post by Dana]

At his rally in Nevada this weekend, Trump suggested that he deserves a third term because he’s “entitled” to it:

President Donald Trump on Saturday once again suggested interest in serving three terms in office, telling attendees of a campaign event in Nevada that he was “probably entitled” to an additional four years following a hypothetical second term.

“And 52 days from now we’re going to win Nevada, and we’re going to win four more years in the White House,” Trump told the mostly maskless, non-socially-distant crowd of his supporters on Saturday. “And then after that, we’ll negotiate, right? Because we’re probably — based on the way we were treated — we are probably entitled to another four after that.”

This isn’t the first time Trump has approached the subject. Back in August, he claimed he should have a third term because his “campaign was spied on”:

“We are going to win four more years,” Trump said. “And then after that, we’ll go for another four years because they spied on my campaign. We should get a redo of four years.”

The victim/entitlement claim is a recurring theme with Trump.

Currently, he claims to have been a victim of The Atlantic, in which a report claims that the President referred to fallen U.S. soldiers in France as “losers” :

“It’s a fake story written by a magazine that was probably not going to be around much longer,” Trump said. “But it was a totally fake story, and that was confirmed by many people who were actually there. It was a terrible thing that somebody could say the kind of things, and especially to me, because I’ve done more for the military than almost anybody else.”

Consider his social media posts in response to a Supreme Court ruling that rejected his claim of absolute immunity, allowing a prosecutor to have access to both the president’s private and business financial records:

“PROSECUTORIAL MISCONDUCT!” and “POLITICAL WITCH HUNT!” He wrote that the decision was “Not fair to this Presidency” and claimed that “Courts in the past have given ’broad deference’. BUT NOT ME!”

And here is how he positioned himself as the victim in the early stages of the pandemic:

Mr. Trump said that news outlets like CNN were “doing everything they can to instill fear in people,” while some Democrats were “trying to gain political favor by saying a lot of untruths.”

And as the pandemic went on:

Rather than taking responsibility for early failures, or admitting that he downplayed the threat, Trump wrapped up Thursday’s press briefing by complaining the media has not treated him “fairly.”

The US is well behind the rest of the world in testing for the novel coronavirus, which is due to faulty test kits sent out by the Centers for Disease Control and Prevention (CDC) last month. Though it’s clear the US is still struggling to make up for lost time due to these early stumbles, Trump on Thursday insisted the government was always prepared.

“We were very prepared,” Trump said. “The only thing we weren’t prepared for was the media. The media has not treated it fairly.”

And at the end of Thursday’s press conference, his big focus was not on what’s being done to prevent more Americans from being killed by this pandemic, but on how poorly Trump feels he’s been treated.

The president baselessly accused the media of being “dishonest” and “siding with China” in its coverage of coronavirus.

“It amazes me when I read the things that I read. It amazes me when I read The Wall Street Journal, which is always so negative. It amazes me when I read the — I don’t even read The New York Times, we don’t distribute it in the White House anymore and the same thing with The Washington Post,” Trump said. These remarks came two days after the Chinese government announced it was expelling US journalists working for the New York Times, Wall Street Journal, Washington Post.

Trump described these outlets as “corrupt news,” and went on to say only he knows the truth.

He also blamed Democrats for intentionally shutting down rallies during the pandemic to hurt him:

Trump, in an interview on “Fox News Sunday,” touted how he built the “greatest economy” until it was derailed by the coronavirus and pledged he would do it again, but that Democrats were trying to thwart his efforts.

“The Democrats are purposely keeping their schools closed, keeping their states closed. I called Michigan. I want to have a big rally in Michigan. Do you know we’re not allowed to have a rally in Michigan?” Trump said in the interview.

“Do you know we’re not allowed to have a rally in Minnesota? Do you know we’re not allowed to have a rally in Nevada? We’re not allowed to have rallies in these Democrat-run states.”

Anyway, you’ve already seen oodles of examples where Trump has blamed his woes on someone else unfairly attacking him. And if he is criticized for his lack of leadership, ineptitude, and corruption, he simultaneously lashes out at the offender while positioning himself as the victim. And because he is a victim in his own eyes, he really believes that he is entitled to…well, whatever he thinks he should have. It only makes sense that a sitting president who truly thinks that no politician “has been treated worse or as unfairly,” believes that he is entitled to a third term. I think in Trump’s eyes, only that could possibly make up for the sins of those who have treated him unfairly. After all, none of that which led to the criticism of him could ever possibly be of his own doing.

–Dana

The conventional wisdom is that Judge Sullivan will use the occasion of the Michael Flynn hearing (currently set for September 29) to rant and rave about the Government’s conduct … and then he will grant the motion. I think the conventional wisdom is correct — but I think he should deny the motion.

The amicus’s recently filed brief makes the case very clearly. This post assumes you haven’t read the brief — which, you should — and summarizes the main arguments.

First, the Government claims there is not even a live case or controversy because the Government and Flynn agree about what should happen. The en banc court explicitly rejected that claim.

Next comes the issue of whether the Court has discretion to dismiss. The amicus, Judge Gleeson, hammers the Government hard about one simple fact: the claim that the “principal” aim of Rule 48 is protection of the defendant necessarily means there are other aims. He quotes D.C. Circuit precedent holding that “[a]lthough decisions not to prosecute may be immune from review, the same cannot be said of decisions to dispose of a pending case …” Past cases have made it clear that courts can scrutinize the Government’s motive without violating the separation of powers when the defendant objects — and the fact that the defendant might agree does not change the separation of powers issue, as the executive’s decision is still the executive’s in either case. This means the separation of powers does not preclude the court from scrutinizing the Government’s motives.

Gleeson argues that if the Government’s statement of reasons is deficient, or if there is evidence of gross abuse, either is a ground to deny a motion to dismiss. I have discussed this before in a post offering various hypotheticals, such as: the Government says “dismiss because we say so”; or the Government cites documentary evidence but refuses to share it with the Court. Such “showings” would be plainly insufficient. If the Government shared the documentary evidence with the Court and that evidence said the opposite of what the Government claimed it said, that too would justify denial of the motion, in my view.

Gleeson says: “As demonstrated by history, Rule 48(a)’s requirement that the Government explain itself exists partly to smoke out the corrupt dismissal of criminal charges against the politically well-connected precisely because they are well-connected.” He cites case law that gives as examples of illegitimate reasons dislike of the victim, or dissatisfaction with the empaneled jury. Surely a desire to benefit the president’s crony is no more legitimate.

The Government cites “materiality” as part of its justification for the motion to dismiss, but Gleeson notes that the Government misstates the standard of materiality in a way that directly contradicts the Government’s previous filings in the same case. Flynn’s statements were “capable of affecting” the FBI’s “general function” and the Government has not even tried to explain how they weren’t — which is unsurprising because it contradicts the Government’s stance in every other false statements case in the country. Not only that, Gleeson says, but the Government has said in the past that Flynn’s statements in fact did hinder an FBI investigation — and the judge has previously bought off on exactly that theory. The Government can’t just come along and yank that justification away (yoink!) without a convincing explanation — and it has provided none. The closest the Government has come is to pretend, disingenuously, that the real issue is whether the FBI was hindered in its investigation of Flynn’s own bad acts (it said the FBI was not hindered) rather than whether the FBI was hindered in its own overall national security investigation (and the Government has previously said the FBI was hindered on that score, and the Government cannot explain how now, all of a sudden, the FBI was not hindered). As Gleeson notes, this is a distortion of the materiality standard.

Remember the nonsensical Government stance in its initial motion that there was no predication for the original investigation? That laughable claim has now been jettisoned in favor of some discussion about a vague internal disagreement about “protocols.” Meanwhile, the Government now pretends that Flynn has to have been an “agent of Russia” when he made the statements for them to be material, which is a made-up standard they have never used elsewhere. The Government trots out other new justifications for the motion (e.g. the jury might not have liked our witnesses or the fact that the FBI agents already knew the answers to the questions they asked Flynn) which, Gleeson notes, is nothing more than a shifting rationale that indicates a pretext.

The Government now claims it would be difficult to show the statements were false — never addressing Flynn’s sworn statement that they were false. Of course, Flynn claims he entered the plea and made these statements because the Government threatened his son … but the Government denies that vociferously (and indeed, as I have discussed here before, the documentary evidence belies any such theory).

The elephant in the room, not even mentioned by the Government, is the way that Trump has always tried to get Flynn off the hook, starting with his private entreaties to James Comey to let Flynn go. Here is Gleeson’s powerful close to his brief:

Based entirely on evidence already in the public view, the only coherent explanation for the Government’s exceedingly irregular motion — as well as its demonstrable pretexts—is that the Justice Department has yielded to a pressure campaign led by the President for his political associate. This Court need not “exhibit a naiveté from which ordinary citizens are free” by pretending otherwise. United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977). It should instead deny the government’s request for leave under Rule 48(a) and proceed to sentencing

I absolutely agree. I think Sullivan should go through this step by step, make factual findings about the lack of forthrightness on the part of the Government, and deny the motion. I don’t doubt that the D.C. Circuit would overrule him, but I think they would have to twist themselves into pretzels to explain why. This brief lays out an excellent road map for denying the motion and I defy anyone to actually read the whole thing and disagree.