At the risk of seeming monomaniacal* about the Flynn case, I think it would be interesting to explore and discuss what would be the proper bounds of Judge Sullivan‘s discretion if the case were to go en banc, the absurd Court of Appeals panel decision were to be reversed, and Judge Sullivan were allowed to conduct a hearing on the Government’s motion to dismiss.

The Government’s central position throughout is to intone the phrase “separation of powers” over and over. The Government’s attorney stammered somewhat at the oral argument when it was pointed out to him that any potential violation of the separation of powers by merely allowing an inquiry into the Government’s reasoning was an injury, not to Flynn, but to the Government — which had not filed its own request for relief. Oops! But while that technicality alone would justify denying relief, let’s examine the separation of powers issues anyway. I propose to do so through presenting some (I hope) easy hypotheticals that illustrate the points I am making. I know I have proposed some more limited form of these hypotheticals in the past, but here I think it’s worth spinning out at some length.

Assume the Government comes to court and says it wishes to dismiss the case for the following reasons. Assume each given justification is the sole justification; we’re not adding these up but imagining several different situations in which the Government offers a single justification. (You’ll notice that many of these hypothetical justifications are unrealistically frank; just pretend you’re watching a scene from “Liar Liar” with Jim Carrey.)

• 1. We request to dismiss this case because the lead prosecutor was bribed. He is not representing the true position of the Department of Justice, which wants to continue the prosecution. But dismiss it anyway.

• 2. We request to dismiss this case because the Attorney General and the President were bribed and therefore this is the true position of the Department of Justice.

• 3. We request to dismiss this case because we think lilacs are very pretty flowers.

• 4. We request to dismiss this case because as it turns out Mike Flynn never actually talked to the FBI. In fact he’s never talked to anyone. Turns out he’s a deaf mute and thus lacks the ability to speak and to make any statement, true or false. So we have determined he could not make false statements.

• 5. We request to dismiss this case because Michael Flynn is white and President Trump has said we should dismiss all cases against white people except for Michael Cohen.

• 6. We request to dismiss this case because, even though the facts and law warrant the prosecution, the President wants to keep Michael Flynn happy so that Flynn does not incriminate President Trump.

• 7. We request to dismiss this case because, even though the facts and law warrant the prosecution, Michael Flynn is President Trump’s buddy and he wants to let his buddies go while having us prosecute his enemies.

• 8. We request to dismiss this case because we say so.

Me, I see all of these as insufficient to justify the granting of a Rule 48 motion to dismiss. To me, there has to be some reason offered, making #8 insufficient. The motion to dismiss can’t be motivated by rank corruption such as bribery (#1), even if it represents the true position of DoJ by reason of that bribery (#2). The reason must bear some relevance to the case (#3) and it can’t be a patently fabricated falsehood that is contradicted by every scrap of paper in the case and all evidence available to the five senses (#4). I don’t think the reason could be a blatantly unconstitutional reason like race (#5) and I personally believe that it could not be justified for patently corrupt reasons (such as #6) or even purely out of cronyism (#7).

I think if DoJ were to come and actually offer one of these justifications, the court could use the power granted to it by Rule 48 to deny the motion because it found the justification either insufficient or blatantly contrary to the public interest.

Now imagine a different scenario. In its motion, the Government gives Reason No. 8: no reason at all. Unbeknownst to the court, the true reason is Reason No. 1 (the line prosecutor has been bribed). The judge says: well, that’s insufficient. I’m going to put you under oath and ask you if you have been bribed. The Government seeks a writ from the Court of Appeal citing separation of powers concerns. The judge is not allowed to ask me if I have been bribed!

Would the Court of Appeal grant that writ?

Imagine the same scenario for each of the remaining justifications. The Government offers no reason in its motion, but in reality its secret reason is that the prosecutor thinks lilacs are pretty, or wants to cut a break to a white guy, or … that he was told to dismiss the case because President Trump wants to get his buddy off.

Are you telling me it violates the Constitution for the judge to simply say he wants to inquire further?

To me, that’s an easy question to answer. Of course not. It seems to me that the court should be allowed to inquire into the reasons, at least in some minimal fashion such as asking the decisionmakers questions about whether the proffered reasons are irrelevant, blatantly false, corrupt, and so forth.

He should at least be allowed to ask.

Now whether he is entitled to dismiss the case once he gets his truthful answer (if he does) is arguably a slightly harder question, depending on the scenario and depending on your view of the separation of powers. I’ll bet you the Separation of Powers crowd thinks that some of these justifications *(or lack thereof) are just peachy. I’m confident they think that the Government can march in and offer no reason at all, as in Scenario No. 8, and demand that the court dismiss. I bet they think several of the other justifications are fine, whether disclosed or held secret.

Their views might frighten you. But it certainly would be interesting to know how far they’d be willing to take this.

These are the sorts of questions that I think should be asked at any argument in this case — perhaps not on mandamus, where the relief is obviously not available for technical reasons having to do with who is injured and alternative means of addressing any injury. But these are the questions that go to the heart of why we have a leave of court requirement.

Just how far are the authoritarians willing to go?

*My philosophy is, when I get interested in a topic, I can add value by discussing it in depth. If you are coming here for your daily news and you are upset that I am not simply reciting the top story of the day, you don’t really understand this blog and you likely never will.

[guest post by JVW]

One of the ugliest of phenomena in recent years is the rise in cancel culture whereby offensive actions, even those taken years earlier during one’s adolescence, are used to place the offender outside the bounds of public approbation, generally resulting in job loss, school expulsions, and public ostracization. The rise of social media, with years’ worth of off-the-cuff utterances and quips preserved for eternity (or, worse, screen-capped before you have a chance to delete them) make all of us easy targets for this horrid game. And given the current dominance of progressive ideology in education, media, and the corporate world, it’s those who fall afoul of conventional woke regulations who most often find themselves cancelled. Though this notion dates back for years and years — even in the pre-Red Scare days — it has certainly ramped up in our divided and digital age. Herewith are some of the notable victims and most egregious examples:

Example 1
Sue Schafer is a young graphic designer who attended a Halloween party at the home of Washington Post cartoonist Tom Toles back in 2018. Because NBC hostess Megyn Kelly had just been fired for offering a defense of wearing blackface for costume purposes, Ms. Schafer thought it would be clever if she dressed as Megyn Kelly in blackface. As the kids would say, the concept was meta. Unfortunately the partygoers did not agree, and Ms. Schafer’s costume was openly criticized much to her embarrassment. End of story? Hardly. For some reason, the Bezos Bugle decided that eighteen months later an account of Ms. Schafer’s social transgression would make for a delightful 3,000-word story which would, of course, end up getting her fired from her job. Josh Barro and Olivia Nuzzi relate the story in New York Magazine. Fun tidbit: ten different WaPo staffers tell Mr. Barro and Ms. Nuzzi that the general consensus in the newsroom is that the paper was wrong to rat on a woman who serves no public role for a noncriminal offense to public mores, yet no WaPo staffers are apparently willing to go on the record with their objections. Keep that in mind next time you hear a media type bloviate about speaking truth to power or afflicting the comfortable or some other such nonsense. At heart they are mostly self-interested cowards.

[UPDATE: Corrected the spelling of Mr. Barro’s last name. Thanks to Dana for noticing.]

Example 2
In the aftermath of the George Floyd killing, MIT’s Tech Catholic Community chaplain Father Daniel Moloney (disclosure: my alma mater, and I spent a bit of time with TCC during my undergrad days and donate money to them annually as an alumnus) sent out a rather ill-advised email message to TCC members which reminded the community that Mr. Floyd “had not lived a virtuous life” (this is largely true, if perhaps a harsh thing to say as the body cools in the morgue) and asserted that we could not yet say definitively that his death was an act of police racism or that police departments have an inherent problem with racism. Fr. Moloney did point out that nothing Mr. Floyd may have done was enough to justify taking his life, and reminded TCC members of Church teachings on the evil of racism and the need for solidarity with our fellow man. Once upon a time in an academic setting like MIT we might have expected Fr. Moloney’s controversial message to have spurred a great and vigorous debate across students, faculty & staff, alumni, and the greater campus community, but here in 2020 agitated parties cried out about the pain and fear that a Catholic priest’s email message had engendered within them, and prevailed upon the historically incompetent Archdiocese of Boston (with a significant assist from the cowardly MIT administration) to remove him as chaplain. Fr. Moloney resigned his position a few days later, almost certainly at the behest of the Archbishop.

Example 3
Famed author J.K. Rowling of Harry Potter fame has earned the enmity of the loud, powerful, and vindictive transgender lobby because she refuses to adopt the trendy decree that one who believes strongly that one is a woman is by definition a woman, no matter if the biological realities suggest something different. Ms. Rowling has actually been expressing this belief for the past several months, much to the chagrin of the dogmatic trans lobby, but given recent developments it makes perfect sense that this battle be reengaged at this opportune moment when imperious leftist thought is ascendant. An obviously talented writer, Ms. Rowling has shared her thoughts on her personal blog. For straying outside of groupthink the activist community has demanded that Ms. Rowling be dropped by her publisher and some snotty little actors whom Ms. Rowling has made phenomenally wealthy have taken to publicly criticizing her for the crime of — you guessed it — intolerance. Though Ms. Rowling is far too much of a money earner (at least for now, though the Harry Potter books will probably always be a cash cow, insipid though they may be) to be dropped by big publishing or Hollywood, her case shows that even the incredibly influential (Ms. Rowling surpassed Her Majesty the Queen as the wealthiest woman in England a few years back) are subject to attempts to silence their nonconforming opinions. And in reading about Ms. Rowling’s case it is sickening to contemplate how the trans lobby in England has used favorable court rulings and laws inimical to free speech to dominate the so-called science of transgenderism to the degree that any dissenting voices are automatically ruled out of order.

Example 4
We’re back to the nonsense about the White Power/OK sign. A worker for the San Diego Gas and Electric Company, Emmanuel Cafferty (who self-identifies as Mexican-American by the way), was driving in his SDG&E truck when he realized he was being followed by a fellow motorist. The motorist snapped and posted to Twitter a picture of Mr. Cafferty (shown at the link) with his left hand dangling out of the driver’s side window and his fingers arranged in that configuration where your thumb and forefinger touch while your remaining three fingers are mostly extended and splayed. Neo-nazi groups claim that the three fingers form the letter “W” while the other two work in tandem with the wrist and forearm to create a “P,” giving us the overall effect of “WP” for “white power.” The rest of us recall it as the universal symbol for “OK,” and Mr. Cafferty claims to have been cracking his knuckles at that moment. Back in the carefree Twenty-teens this would have had all of us rolling our eyes in boredom, but in 2020 it is enough to have Mr. Cafferty first suspended and then dismissed from his job. SDG&E says that they performed “a thorough investigation” and perhaps there is more to the story than we are privy to, but absent a convincing account of the menace of Mexican-American White Nationalists in the greater San Diego area and assuming that Mr. Cafferty is preparing to file suit against SDG&E for wrongful termination, I’m going to assume that this is just the typical overreaction by a utility that is answerable to weak-kneed politicians and a public with far too much time on its hands.

Example 5
Joyce Kenner is the principal of Whitney M. Young Magnet High School in Chicago, a prestigious institution with a long waiting list of high-achieving kids who would love to enroll. The demographics of the school are roughly 50% black and Latino and 50% white and Asian. Principal Kenner is herself African-American and as an eleven-year-old girl participated in protest marches after the assassination of Martin Luther King, Jr. She has also raised a son in Chicago, so she is well aware of the tensions that young black males often have with law enforcement. When the George Floyd protests geared up she sent out a message to her COVID-secluded students sharing her sadness at the senselessness of Mr. Floyd’s death but encouraging them to avoid engaging in violent and illegal acts during protests. She has also continually resisted calls for removing armed Chicago Police officers from the school, citing the problems with gangs and school shootings as adequate reasons to continue requiring their presence. For her commonsense approach to running an high-performing urban school, Ms. Kenner is now the subject of petitions seeking to have her removed as principal, alleging that she is trying to silence student activists who support Black Lives Matter and that she continues to enable systemic oppression of black and brown students at the school. African-American parents further complain that a school that was once majority black has become more diverse (ironies abound, eh?) as the Latino population of Chicago increases and as whites and Asians apply for coveted slots at the school, factors which can hardly be blamed on the principal. Fortunately, Ms. Kenner does not appear to be willing to back down, and is fighting to retain her job. But given the current climate, I can only wish her much luck in the battle.

Over at National Review Online, Zachary Evans and John Loftus are compiling a handy list of all of the attempts to drive a person, living or dead, out of the public square. It includes, I believe, all of the examples cited above as well as dozens more, with the list sadly growing every day. Very depressing indeed, though somewhere in hell Joe Stalin and Mao Zedong are smiling in appreciation.

– JVW