[guest post by JVW]

It would seem that the higher education establishment is quite bearish on the ability to welcome all students back to campus for the 2020-21 academic year.

BREAKING: @calstate's leader Tim White says that the 23-campus system will be largely virtual in Fall 2020. Some exceptions will be made for hands-on courses, but he cites analysis of forthcoming waves of covid-19 infection that makes in-person learning too dangerous.

— Mikhail Zinshteyn (@mzinshteyn) May 12, 2020

Mikhail Zinshteyn is the higher education reporter at CalMatters, which is the go-to news source for honest and virtually agenda-free reporting about Golden State matters.

It will be interesting to see if the University of California system releases a similar edict. This will no doubt trigger some layoffs at the CSU campuses, but it will also likely make some small progress in ameliorating the coming budget crunch.

– JVW

A piece at Lawfare written by a pair of Harvard Law students asks: The Justice Department Wants to Drop Flynn’s Case. Can the Judge Say No? The piece is well-written and is fine as far as it goes, but I think it overlooks a key case that will be central to Judge Sullivan’s analysis. In essence, the students (Charlotte Butash and Hilary Hurd) read the cases in the Government’s brief, but they don’t demonstrate that they read the cases cited in the cases in the Government’s brief — and as I result I think they missed something important.

(This will be review for those of you who read every word of my lengthy imagination of one way the next Flynn case court hearing could go. If you have not read that post, enjoy.)

Butash and Hurd properly note that the issue of Judge Sullivan’s discretion starts with Federal Rule of Criminal Procedure 48(a), which requires leave of court for a dismissal motion such as the Government has brought in the Flynn prosecution. As Butash and Hurd note, the key case on the subject, Rinaldi v. United States (1977) 434 U.S. 22, says that (the words of Butash and Hurd):

[T]he “salient issue” under Rule 48(a) was not whether the original decision to bring charges was made in bad faith but, rather, whether the government’s motion to dismiss the prosecution was “similarly tainted with impropriety.”

Quite so. And Butash and Hurd go on to say:

The Supreme Court’s decision does not explicitly limit the appropriateness of an inquiry into whether the motion is tainted with impropriety only to situations in which a defendant faces multiple repeat prosecutions; it does, however, note that the “principal object” of the “leave of court” requirement is to protect a defendant against prosecutorial harassment.

Here is where I have a problem with their analysis. To say the case does not “explicitly” say something is to imply that maybe it “implicitly” says that. But what Butash and Hurd miss, and I pointed out in my imagined Flynn hearing post, is that (as my imaginary Judge Sullivan lectures my imaginary USA Shea):

[T]he Rinaldi court favorably cited United States v. Cowan, a 1975 case from the Fifth Circuit found at 524 F.2d 504, at page 513. And Cowan, while it overruled a district court decision to deny a motion to dismiss, nevertheless stated, quote, “It seems to us that the history of the Rule belies the notion that its only scope and purpose is the protection of the defendant.”

So while Rinaldi did not “explicitly” say the only purpose of the rule is to protect a defendant, it favorably cited a case that explicitly said otherwise. Moreover, lest you think I’m reading too much into that citation, Rinaldi also added this specific observation, also ignored by Butash and Hurd:

[T]he Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest.

That sentence appears in the very same footnote that says the “principal object” of the leave of court requirement is to protect defendants.

What the Supreme Court is saying is: there are other objects besides the principal object. And one of those is an analysis of whether the motion was prompted by “considerations clearly contrary to the public interest.” And the favorable citation of Cowan certainly implies that those considerations are most certainly not limited to considerations that protect the defendant, but also to instances of “impropriety” that aid the defendant.

Butash and Hurd go on to cite the Fokker case cited in the Government’s brief, and say “the D.C. Circuit reemphasized that a district court reviews a Rule 48(a) motion ‘primarily’ to protect a defendant from dismissals that are part of a scheme of prosecutorial harassment to repeatedly bring and then dismiss charges.” This has some significance, but not as much as the piece attributes to it.

On one hand, it’s true that Fokker reemhpasizes the consensus that the trial court’s role is circumscribed. Let’s be clear: the courts will not uphold a refusal to dismiss the case because the judge has a strong feeling that the Government has weighed the benefit to the public interest inaccurately. If Judge Sullivan’s problem with the Government’s position is that Judge Sullivan would have thrown the book at Flynn if he were the prosecutor, that’s not enough to reject the motion. There has to be an “impropriety.”

But on the other hand, the D.C. Circuit is the D.C. Circuit and the Supreme Court is the Supreme Court. And the D.C. Circuit can emphasize the “primary” policy of the Rule 48 leave provision all it likes. The Supreme Court of the United States has still said that is not the only policy consideration. A dismissal contrary to the public interest that is tainted with impropriety can still be rejected.

And here, we have a case where the President of the United States personally asked the FBI director to let this defendant go — a defendant who supported the President during his campaign. For the very reason that the prosecution was related to a probe that involved presidential politics, a Special Counsel handled the investigation to avoid political pressure from improperly influencing the case. Now the career lawyer working for that Special Counsel has withdrawn and a slipshod and unconvincing brief has been filed by a political appointee and signed by no career prosecutor. The smoke of politics is heavy.

Butash and Hurd claim: “To deny the government’s current motion, in other words, Sullivan would have to distinguish this case from broad and controlling precedent.” I disagree. Based on the authority cited above. Judge Sullivan need only apply controlling precedent to ask some pointed questions (and perhaps conduct some investigation of his own) to determine whether the smoke of politics is emanating from a dumpster fire of impropriety.

P.S. The types of questions he might ask have been well covered in pieces I recommend here and here.

[guest post by JVW]

Because I no longer regularly read their newspaper, it escaped my notice that the Los Angeles Times editorial board had one of their rare moments of elightenment this past Friday when they judged the Trump Administration’s recent updates to Title IX policy to be, well, quite sensible:

When Education Secretary Betsy DeVos decided to revisit the rules governing sexual assault accusations at colleges, some victims’ advocates feared she would make it too difficult to hold assailants responsible. But the rules released this week make reasonable changes for the most part, curbing some of the excesses of the previous system.

The editorial board does criticize the new Trump Administration guidelines for allowing institutions to determine whether to continue with the Obama-era preponderance-of-evidence standard (i.e., a student is at least 51% likely to be guilty instead of guilty beyond a reasonable doubt) or to adopt a more stringent standard of proof. They would prefer that the looser standard continue to be mandated across all educational institutes, public or private. Two years ago that same editorial page used their support of the 51% likelihood of guilt standard as a lynchpin to argue against any sort of modifications to the Obama rules, as noted by the title of their earlier editorial, “Hey, Betsy DeVos, keep your hands off campus sexual assault standards.”

You don’t suppose that the whole mess that Joe Biden finds himself in has sort of focused the editorial board’s mind on this particular problem, do you? Back in August of 2017 they assured us that “[t]he aim [of a campus inquiry] isn’t to enforce the law; it’s to enforce the rules the campus sets for behavior by its students, staff and faculty,” and they waived off any suggestion that the Obama guidelines had empowered schools to tip the scales against the accused, ensuring us that basic protections for due process were “all part of the written guidance that the Office of Civil Rights has published.” Now they acknowledge that under the Obama regulations “there were ways in which its rules swung too far in the other direction, violating accepted norms of due process and basic fairness.” Naturally, no mention is made of their fondness for these rules in toto just twenty-one months ago.

It ought to be noted that in August 2017, sexual assault still served as a convenient cudgel that Democrats and their feminist allies were happily wielding against the Trump Administration and other troglodyte Republicans. Perhaps you remember the proliferation of whimsical hand-knitted headwear. But just three months later Leeann Tweeden would go public with her accusations against Senator Al Franken; in that some month would come reports that Congressional warhorse and Civil Rights crusader John Conyers had settled several sexual harassment lawsuits with women under his employ; and the following spring would bring word that crusading hero Eric Schneiderman, Attorney General of New York, had an ugly habit of physically abusing women. Once it became clear that these sort of allegations tripped up progressive men as often as (if not more often than) they took down conservative men, the Democrat establishment noticeably started to cool on the whole #MeToo thing, even though the activists continued to lead the charge. Now that they are close to nominating a man whose behavior with women would likely put him on the precipice of getting kicked out of the University of Delaware — not to mention Oberlin or Reed — suddenly Democrats’ ardor for believing all women has waned, and their media brigades are sounding the retreat.

To its credit, the Los Angeles Times editors were never as gung-ho about this issue as their colleagues at the New York Times editorial page or the Huffington Post or Salon. Over the past few years their opinion page has published several pieces by authors critical of the kangaroo courts and the lowered bar for finding the accused guilty. It would have been nice if they would have acknowledged — rather than minimized — the problems that the Obama Administration’s notorious “Dear Colleague” letter wrought over the past decade, but where the LAT editorial board is concerned, a better-late-than-never criterion will have to suffice.

– JVW

[guest post by Dana]

Due to time constraints, I’m just going to throw these against the wall, and see what sticks…

From Team Trump, here is “Tough Steps”:

( Right off the bat, I see that the definition of the word “banned” is up for grabs. You can read a fact check of the ad here. )

From Team Biden:

Donald Trump just doesn't understand: We have an economic crisis because we have a public health crisis — and we have a public health crisis because he failed to act. pic.twitter.com/hRrueGgx2C

— Joe Biden (@JoeBiden) May 11, 2020

(Honestly, this is such a long, visual mess, I lost interest about 30 seconds into it.)

What do you think?

–Dana