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The D.C. Circuit’s Dubious Decision Ordering the Flynn Case Dismissed

Today the D.C. Circuit granted Michael Flynn’s petition for a writ of mandamus, ordering District Judge Sullivan to grant the government’s motion to dismiss the criminal case against Flynn. Judge Rao, joined by Judge Henderson, concluded that District Judge Sullivan erred in appointing an amicus to defend continuation of the Flynn prosecution and in scheduling a hearing on the Government’s motion.  For more background on the case, see my post here and Jonathan’s post here.

The critical legal issue is the district judge’s role, under Federal Rule of Criminal Procedure 48(a), in deciding whether to grant “leave of court” for the Government to dismiss a criminal case.  Judge Sullivan had taken an expansive view of his role, even appointing an amicus (distinguished retired District Judge John Gleeson) to argue against the Government’s unopposed motion to dismiss. The majority found this appointment a “troubling indication” of the district court’s “mistaken understanding” of its role in ruling on an unopposed Rule 48(a) motion:

Whatever the extent of the district court’s “narrow” role under Rule 48(a), see Fokker Servs., 818 F.3d at 742, that role does not include designating an advocate to defend Flynn’s continued prosecution. The district court’s order put two “coequal branches of the Government … on a collision course.” Cheney, 542 U.S. at 389. The district court chose an amicus who had publicly advocated for a full adversarial process. Based on the record before us, the contemplated hearing could require the government to defend its charging decision on two fronts—answering the district court’s inquiries as well as combatting Gleeson’s arguments. Moreover, the district court’s invitation to members of the general public to appear as amici suggests anything but a circumscribed review. This sort of broadside inquiry would rewrite Rule 48(a)’s narrow “leave of court” provision.

The majority’s conclusion on the impropriety of appointing an amicus seems correct to me. In discharging his leave-of-court obligations, the district judge had no need to enlist advocates for a particular conclusion, particularly where the judge was well familiar with the details of the case.

The majority, however, stands on weaker footing in concluding that the district judge could not even hold a hearing on the dismissal motion.  As Judge Wilkins explained in his dissent,

it is not inconsistent with the separation of powers for a district court to conduct regular proceedings and afford consideration to a motion, even if the eventual grant or denial of the motion might intrude on the Executive’s exercise of his prosecutorial discretion. Again, this is not a case where we are being asked to decide whether the district judge may call the prosecutor to the stand or whether a Rule 48(a) motion may lead to an evidentiary hearing. This is a case about whether a district judge may even hold a hearing on a Rule 48(a) motion. While the selective-prosecution context is admittedly different than Rule 48(a), these cases nonetheless contradict the majority’s conclusion that holding a hearing, in and of itself, is a per se improper intrusion upon executive power. If the presumption of regularity does not prevent holding a hearing or independently examining prosecutorial discretion in the selective-prosecution context, there is no good reason why the presumption of regularity precludes a hearing on a motion to dismiss under Rule 48(a), disallowing any consideration whatsoever and forbidding the district court from expressing its views on the record with respect to its previous findings on materiality and guilt—all in the name of the separation of powers.

The majority rebutted this conclusion, arguing that “[t]his is not a case about whether ‘a district judge may even hold a hearing on a Rule 48(a) motion.’ Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by … probing the government’s motives. On that, both the Constitution and cases are clear: he may not.”

The Constitution and the cases are not “clear” on this subject. Indeed, the majority’s reading of Rule 48(a) essentially turns it into a dead letter. Rule 48(a) specifically envisions some role–albeit a limited one–for the district court in evaluating motions to dismiss. It is hard to understand how the mere holding of a hearing on whether to grant leave of court is such an extraordinary abuse of power to warrant granting a writ of mandamus. On this point, I agree with former Judge Michael Luttig, who wrote in a prescient op-ed last month in the Washington Post that “[i]f the court of appeals were to order Sullivan to dismiss the case now, the full appeals court or, if not, the Supreme Court, should reverse that error.”

In venturing my conclusion that the district judge should have been allowed to hold a hearing, I don’t mean to comment on the ultimate merits of the underlying motion to dismiss from the Government. Indeed, if anything it sounds like the arguments favoring dismissal may have only grown stronger since the Government filed its motion. News reports yesterday suggest that additional exculpatory notes from Peter Strzok have surfaced recently that only further undercut the Government’s criminal case.

But the process is important here. Rule 48(a) requires “leave of court” before the Government can dismiss a case.  And that leave-of-court requirement exists not only for protecting defendant’s interests (as the majority opinion discusses) but also for protecting other interests, such as those crime victims (as the majority does not substantively discuss). As I explained in my earlier post on this case,

for the reasons I wrote about long ago in my earlier law review article, I continue to believe that judges should always be required to consider a crime victim’s views before dismissing a case. It may well be that most Government dismissal motions continue to be granted, even when a victim objects. But as a procedural matter, consideration of the victim’s view ensures greater fairness–and certainly greater perceived fairness–in the process.

This conclusion is reinforced by the drafting history of Rule 48(a), recently summarized nicely in a short, on-line piece by Thomas Frampton. As he explains, “Rule 48(a)’s ‘principal object’ was never ‘to protect a defendant against prosecutorial harassment,’ Rinaldi v. United States, 434 U.S. 22, 30 n.15 (1977) (per curiam). Rather, it was implemented to give district judges a modest means of safeguarding the public interest when evaluating a motion like the one that has been filed in United States v. Flynn.”

Other circuits have taken a more expansive view of the role of district judge’s under Rule 48(a) than did the D.C. Circuit today. I wouldn’t be surprised to see further review of this divided opinion–which essentially reads Rule 48(a)’s long standing leave-of-court requirement out of the rules of criminal procedure.

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“Where’s The Police When You Need Them”: D.C. Delegate Asks The Right Question After Bizarre Incident Near White House

“Where’s The Police When You Need Them”: D.C. Delegate Asks The Right Question After Bizarre Incident Near White House

Tyler Durden

Wed, 06/24/2020 – 15:10

Authored by Jonathan Turley,

NBC correspondent Andrea Mitchell and Delegate Eleanor Holmes Norton (D-D.C.) had a bizarre encounter yesterday when a man dressed only in a bra and panties rushed then near Black Lives Matter Square and the area claimed earlier as the “Black House Autonomous Zone.”

Mitchell immediately asked “where’s the police” and Norton added “where’s the police when you need them?” It is a question that many of us have been asking D.C. officials for weeks as police have stood by and watched statues destroyed and defaced around the city. 

This week, D.C. Chief of Police Peter Newsham stated that his department has made the “tactical decision” not to intervene as certain statues have been torn down in front of them. I have been highly critical of both this destruction and the failure of D.C. officials to act, including the iconic bust of George Washington on my own campus at George Washington University.

Thankfully no one was injured in this encounter:

The answer to the question however is equally troubling. Police are often around when violence and destruction occurs in these protests.

The question came up when reporters asked Newsham why officers stood around as mere pedestrians on Friday night as a mob pulled down the statue of Albert Pike in Judiciary Square. There have been good-faith calls for the removal of the statue, including by Norton.  I have participated in this debate for years on determining what public art should be removed and what standards we should apply to the preservation of historical monuments, including a discussion organized by the Smithsonian Institution a few years back.  Some monuments should be removed but this should be done with the consent and deliberation of the communities.  Indeed, such acts hold greater meaning when done through legitimate and consensual means.  This is not part of that debate, this is destruction by mobs who unilaterally determine what public art will be allowed and what will be destroyed.

After a mob was allowed to attach ropes and work to pull down the statue of Andrew Jackson, there was a belated response from federal and district officers. The statue however was defaced and was only saved from toppling by its sheer size.  Media reported that Mayor Muriel Bowser and her office declined any comment on the mob scene that was scene on every network. That was what one might call a “tactical political decision.”

The “tactical decision” made by the Newsham is a convenient and widely used approach around the country.  Leaders are allowing art to be destroyed rather than confront these mobs — not on the inherent value of the monuments but the right of society to make such decisions as a whole.  This is nothing new. Such tactical decisions have been made by universities for years as they watched their art destroyed without any action or discipline.  At the same time, police have been ordered to give mobs free range in destroying public art.  Even when arrests are made, prosecutors have dropped charges under pressure from the public. 

This same tactical decision has been made in other cities by leaders.  Just yesterday, a legislator was attacked and sent to the hospital for taking a picture of the destruction. Both journalists and pedestrians have also been attacked for filming such scenes by protesters. Democratic senator Tim Carpenter told the Milwaukee Journal Sentinel that he was beaten after taking a photo last night as two statues being toppled.

The protesters tore down the statue of Col. Christian Heg, who fought and died during the Civil War on the Union side

As noted earlier, the spectrum of action from cities and universities seems to range from deafening silence to cringing compliance in the face of such destruction.  At the University of Oregon, famous statues of the Pioneer and Mother Pioneer were torn down. The University condemned the destruction and then promptly promised that the statues would be carted away and not returned.

Thus, the answer to D.C. Delegate Norton’s question is that the police is often present, but remain mere pedestrians by design.  Call it “tactical” or consensual, but destruction of public art and historical monuments is occurring with the acquiescence of the city leaders.

via ZeroHedge News https://ift.tt/2NsiW9K Tyler Durden

Apple To Re-Close Another 7 Stores, Adding To Virus Resurgence Fears

Apple To Re-Close Another 7 Stores, Adding To Virus Resurgence Fears

Tyler Durden

Wed, 06/24/2020 – 14:59

On Friday, stocks slumped as second wave fears were reignited following a report that Apple would temporarily shutter 11 U.S. retail stores across Florida, Arizona, North Carolina and South Carolina. “Due to current COVID-19 conditions in some of the communities we serve, we are temporarily closing stores in these areas,” an Apple spokesman said in a statement.“We take this step with an abundance of caution as we closely monitor the situation and we look forward to having our teams and customers back as soon as possible.”

Fast forward to today, when with stocks already sliding on renewed virus of a second wave of virus infections, moments ago Apple reported that it would re-close another 7 stores in Houston and Texas due to the coronavirus spike.

The headline hit at time when stock uneasiness was “morphing into fright” as Bloomberg put it, after data showed virus cases spiking in Florida and Texas, California reporting a record 7,149 new cases, while New York, Connecticut and New Jersey said visitors would face a mandatory quarantine. The news sent the S&P sliding 2.7%.

“The latest coronavirus news is not positive for the stock market which was betting the worst of the pandemic recession was behind us,” said Chris Rupkey, chief financial economist for MUFG Union Bank. “Hopes of investors looking for a better economy to improve the bottom lines of companies shut down in the recession have been dashed.”

Analysts have been paying attention to see whether other retailers follow suit to see if it adds any concerns to the reopening narrative, but so far Apple are the only ones doing so. 

via ZeroHedge News https://ift.tt/3eyJvGf Tyler Durden

Biden Invoked 1799 ‘Logan Act’ During Secretive Oval Office Meeting About Flynn Investigation

Biden Invoked 1799 ‘Logan Act’ During Secretive Oval Office Meeting About Flynn Investigation

Tyler Durden

Wed, 06/24/2020 – 14:50

Joe Biden invoked the 18th century “Logan Act” during a controversial 2017 Oval Office meeting to discuss the Michael Flynn investigation, less than two weeks before President Trump was sworn into office, according to newly released notes taken by former FBI special agent Peter Strzok.

According to Flynn’s legal team, “it appears” that Biden “personally raised the idea” of using the obscure law to prosecute Flynnn over his communications with the former Russian Ambassador to the United States – in which he asked Moscow to “reciprocate moderately” in response to sanctions placed on Russia over election meddling.

It’s unclear what Biden specifically said about the Logan Act during the January 5 meeting which included former President Obama, former FBI Director James Comey, national security adviser Susan Rice, and Deputy AG Sally Yates.

The notes were disclosed in a court filing Wednesday to the U.S. District Court for the District of Columbia around the same time a federal appeals court ruled in a 2-1 decision that the judge presiding over the case against Flynn grant the Justice Department’s motion to dismiss the criminal charges against him. U.S. Attorney Jeffrey Jensen of Missouri, who was picked by Attorney General William Barr to review the government’s case against Flynn, “obtained and analyzed” the document. Biden’s comment about the Logan Act are the only words that appear in quotation marks. –Washington Examiner

Elsewhere in the notes, Strzok wrote that Money said the calls between Flynn and Sergey Kislyak “appear legit,” while Obama stressed that “the right people” should investigate Flynn. This is in sharp contrast to an email Susan Rice sent to herself in which she said everything was done “by the book.”

Rice and Strzok’s accounts comport with each other over Obama asking if there was anything information he should withhold from the Trump transition team, to which Comey responded (according to Rice) “Potentially,” adding that he doesn’t know if Flynn has passed any classified information to the Russians, but that the “level of communication is unusual.”

According to Strzok’s notes, Obama said “these are unusual times,” with Biden saying “I’ve been on the Intel Committee for ten years and I never…” before the notes trail off.

Flynn pleaded guilty in December 2017 to lying to the FBI about his conversations with former Russian Ambassador to the US, Sergey Kislyak, during the presidential transition following the 2016 US election. He later withdrew his plea after securing new legal counsel, while evidence emerged which revealed the FBI had laid a ‘perjury trap‘ – despite the fact that the agents who interviewed him in January, 2017 said they thought he was telling the truth. Agents persisted with the case despite the FBI’s recommendation to close it.

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Forget COVID-19, Watch For The Second Wave Of GFC2

Forget COVID-19, Watch For The Second Wave Of GFC2

Tyler Durden

Wed, 06/24/2020 – 14:30

Authored by Jeffrey Snider via Alhambra Investments,

I guess in some ways it’s a race against the clock. What the optimists are really saying is the equivalent of the old eighties neo-Keynesian notion of filling in the troughs. That’s what government spending and monetary “stimulus” intend to accomplish, to limit the downside in a bid to buy time.

Time for what? The economy to heal on its own. Fill up the bathtub, so to speak, with artificial stimulus water (aggregate demand) until such time as the basin stops leaking and it’s that much of a shorter way to go for the water level to rise back to normal without the need for further assistance.

What happens in the trough is what can make the worst kinds of troughs; second and third order effects where instead the negative forces are amplified and the recession becomes worse than “it needs to be.” That’s the Keynesian motto, essentially.

In some ways, though, they were too late for this one. The overreaction shutting everything down willy nilly as well as GFC2 took away time and space (to use a sports metaphor). The window for a successful outcome has already been perilously narrowed. What I mean is:

Americans have skipped payments on more than 100 million student loans, auto loans and other forms of debt since the coronavirus hit the U.S., the latest sign of the toll the pandemic is taking on people’s finances.

Not only that, according to the same WSJ article, 106 million have “enrolled in deferment, forbearance or some other type of relief since March 1”, a level that is triple what was estimated at the end of April just one month prior.

One Hundred Six Million.

As I wrote before, this isn’t about share prices; except how Jay Powell intends to use the stock market as a means to try to offset any nasty consequences of regular folks and businesspeople from getting the idea conditions are anything other than awesome. Not today; everyone knows it sucks today. But tomorrow things will be soaring again, just hang in there like the S&P shows you!

One hundred and six million in the default pipeline, though, that can only mean the clock has already started ticking. The output of that pipeline is bankruptcy and loss, and wide distribution of both. A consumer who wins bankruptcy relief doesn’t extinguish their obligation, they’ve simply redistributed the loss to the bank or financial firm who first extended the loan.

Same for companies filing bankruptcy protection.

And that means already today banks as well as markets for, say, risky corporates are preparing for the possibility – likelihood – of pain only beginning in several months’ time. That’s how long a missed payment takes to become an impairment. Neither needs an actual default for liquidity to just vanish, a lesson everyone (but Economists) learned very well from GFC1.

Even if 90% (or even 95%!) of that 106 million gets worked out before default, that still leaves an overwhelming blow to first the financial system.

That’s why I wrote yesterday Jay Powell’s magic word program in especially corporate credit is at best temporary. There’s a looming showdown (watch what hedge fund lawyers are up to right now, sheltering assets) and more than one wave to it (a second wave of GFC2 is far more likely, and likely far more damaging, than a second hit from COVID-19).

So, in Powell’s mind what he has to do is get the business sector high on “money printing” and the 100% guaranteed, no-question-about-it, don’t-you-dare-fret inflationary environment this will bring. If he can do that, he believes business reaction will be positive enough that it then will limit the number of bankruptcies as well as other negative pressures before they can spiral (further) out of control.

A whole lot of happy thoughts for a future not yet written. Lacking any effective money, that’s monetary policy today.

Except, the future is already partially written; the clock started ticking the moment GFC2 completely surprised Chairman We Saw It Coming. Loan officers have said so as have that 106 million-strong group.

Before any of that, though, the task is much more basic. Just get everyone, or as close to everyone as humanly possible, back to work by next month, next week. If only it was that easy.

The “V” people all seem to think that it is; the government flipped a switch turning off the economy, so just toggle it in the other direction and stop worrying. Everything merely frozen in time, reanimated easily by the first thaw and warmth of reopened movement.

To that end, there’s been a fundamental misreading of what PMI’s have to say on the matter. These, like the economy itself, bottomed out two months ago in April. Since, they’ve been rising, rapidly, which has been taken as a sign of the “V.” As economies have reopened to some degree, the upward leg of these sentiment indices is in too many places equated with a return to growth.

To begin with, that’s not actually what these PMI’s are indicating. Since they are entirely second derivatives, the June flash estimate from Markit, for example, is simply stating that the contraction portion may be nearing its end. Not there yet, the economy is still contracting if at a much slower rate.

Markit’s US Composite PMI surged in June, registering 46.8 in the latest estimate compared to 37.0 in May and a low of 27.0 posted in April. That number by itself doesn’t equate to growth, it only suggests, again, the rate of contraction has slowed substantially.

We’re still in the downturn.

Not only that, the rate of indicated contraction in June remains rather steep – it’s only when compared to the absolute collapse in April that it seems a remarkable improvement.

What’s instead happening is that the upward slope of the PMI, like the employment report, is being extrapolated in a straight line into the months ahead. After all, you can’t go from steep contraction to rapid growth and recovery unless you first traverse these middle steps like 46.8 on the way to 80 or 85.

Far too many are assuming that’s what will happen; worse, they are making that assumption based on what they are led to believe is tremendous “stimulus.” Even the Markit press release cautions on both accounts:

Any return to growth will be prone to losing momentum due to persistent weak demand for many goods and services, linked in turn to ongoing social distancing, high unemployment and uncertainty about the outlook, curbing spending by businesses and households. The recovery could also be derailed by new waves of virus infections. Continual vigilance by the Fed, US Treasury and health authorities will therefore be required to keep any recovery on track.

In other words, yes, the prospects for second and third order effects (which we’ve already observed, quite severe in key places) that Jay Powell will have to be on his toes about. And that, more than anything, is why he lied his ass off on 60 Minutes, especially that whole part about “so we saw it coming.” He’s got to gaslight the world into believing they really are a vigilant group instead of the bunch of bumbling, incompetent bureaucrats they otherwise have shown themselves to be (time and time again).

But Markit’s data also illustrates how – even if you believe in “stimulus” – the odds are already stacked against the economy. The two words you never, ever want to hear under contraction conditions, let alone historic contraction conditions, are “cut” and “costs.” These are the very essence of dreaded pro-cyclicality.

The June survey meanwhile signalled [sic] further cuts to workforce numbers across the private sector, albeit at only a modest rate. Where an increase was noted, some businesses reported the return of furloughed staff. That said, hiring freezes and relatively weak demand led many other companies to shed employees in an effort to cut costs.

Markit’s data a glaring echo of the continuously terrifying level of jobless claims; a “modest rate” in the PMI data if compared only to itself.

If companies are in cost-cutting mode, and they obviously are, then that immediately puts a ceiling on the right side of the hoped-for “V” (arguing dead against the straight-line extrapolation) and then sets up the potential second wave of GFC2 and economic contraction. How? A weak labor market means instead of 90% of the 106 million work out their loan (or rent) situation before it goes too far, only 85% maybe even just 80% do!

Heaven forbid something like 75%. Ninety percent would already be big trouble.

Being unable to get close to everyone who has lost a job (or just lost income from wage or salary cuts plus those working less hours) back into their former groove is the real bogeyman lurking out there just over the visible time horizon. And that horizon is shrinking with every added missed payment due to a lost or shrunken paycheck.

Less consumer spending means curtailed revenues, no pathway to restore profitability, and therefore even more, say it with me, cost cutting by businesses.

It’s not the waves of bankruptcies that spell doom, such comes long before them. All you need is for markets, credit markets, to begin suspecting it’s a good probability. If that happens, like 2008 or March 2020, just watch how quickly it unravels and market liquidity up and disappears (again), how fragile things really are even though there’s that whole “flood” thing.

Despite Jay Powell’s (limited) success at the NYSE and (unqualified success) in the financial media, those seemingly little two words keep coming up in way too many places: cut costs.

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Alexandria Ocasio-Cortez Had a Big Night in New York’s Primary. Hillary Clinton Fell Flat.

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This year’s primary season has been a mixed bag for the insurgent progressives within the Democratic Party’s ranks, but Tuesday’s results in and around New York City seem to have cemented Rep. Alexandria Ocasio-Cortez’ (D–N.Y.) status as more than a fluky upstart.

Ocasio-Cortez easily won her congressional primary election on Tuesday night, a result that effectively ensures a second term for the 30-year-old. Then, she may have delivered a knockout blow to a 16-term incumbent who had been endorsed by Hillary Clinton and other long-time Democratic leaders. It’s too soon to call her a kingmaker within Democratic politics, but two-years after she beat an 11-term incumbent, Ocasio-Cortez—with help from the vast sums of money she’s been able to raise in the past two years—appears to have scored another victory in the proxy war between leftists and centrists.

This time, the victim was Rep. Eliot Engel (D–N.Y.), chairman of the House Foreign Affairs Committee and a noted hawk, who appears to be on course to lose to Jamaal Bowman, a middle school principal whose candidacy was endorsed by Ocasio-Cortez. With 91 percent of precincts reporting and absentee ballots still waiting to be counted in the 16th district—which includes parts of Bronx and Westchester counties—Bowman had a whopping 25 point lead over Engel on Wednesday afternoon.

In addition to Ocasio-Cortez, Bowman was endorsed by Sens. Bernie Sanders (I–Vt.) and Elizabeth Warren (D–Mass.), while the longtime incumbent Engel picked up an endorsement from Hillary Clinton last week to go along with support from Speaker of the House Nancy Pelosi (D–Calif.) and Senate Minority Leader Chuck Schumer (D–N.Y.).

But Clinton, Pelosi, and Schumer couldn’t save Engel, who seems likely to become just the second incumbent Democrat to lose a primary this year after Rep. Dan Lipinski (D–Ill.).

Bowman, a 44-year old teacher-turned-principal, used his campaign to call for a “third Reconstruction” to build on the legal and social advances made by black Americans in the wake of the Civil War and again during the civil rights movement. He’s called for removing military weaponry from police departments and repealing the 1994 federal crime bill that caused America’s prison population to skyrocket.

In the neighboring 14th district, Ocasio-Cortez saw off a trio of primary challengers with relative ease. With only absentee ballots left to be counted on Wednesday afternoon, she had won more than 72 percent of the vote.

The most serious challenge to Ocasio-Cortez came from Michelle Caruso-Cabrera, a former CNBC anchor and self-described fiscal conservative who criticized the first-term progressive’s expensive agenda. But she was no match for AOC’s campaign spending.  Ocasio-Cortez has raised more than $10 million since 2019, and she spent more than $2.4 million on Facebook ads alone since January—far more than any other member of Congress has, The New York Times reported last week—as the COVID-19 pandemic effectively halted traditional campaigning in her district.

We should not overstate the success of progressives during this campaign cycle. In the presidential race, most obviously, candidates who tried to raise their profile by competing in the “woke primary” were rejected by voters and an old white guy with a track record that’s anything but progressive eventually emerged as the party’s presumptive nominee. With Engel being only the second centrist incumbent to lose a primary this year suggests that 2020 is not exactly a bloodbath for moderate Democrats.

That the party establishment has limited the losses is probably good for the Democrats’ chances in November. If the party wants to expand its House majority, flip the Senate, and take the White House, it has to appeal to voters in purple and red districts—not just those in the Bronx or at Berkeley.

Still, Congress could be a better institution with more outsiders who are willing to challenge their party’s leadership, as Ocasio-Cortez has done on occasion. And, if nothing else, at least we get to enjoy the defeat of a Clintonite interventionist like Engel.

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The D.C. Circuit’s Dubious Decision Ordering the Flynn Case Dismissed

Today the D.C. Circuit granted Michael Flynn’s petition for a writ of mandamus, ordering District Judge Sullivan to grant the government’s motion to dismiss the criminal case against Flynn. Judge Rao, joined by Judge Henderson, concluded that District Judge Sullivan erred in appointing an amicus to defend continuation of the Flynn prosecution and in scheduling a hearing on the Government’s motion.  For more background on the case, see my post here and Jonathan’s post here.

The critical legal issue is the district judge’s role, under Federal Rule of Criminal Procedure 48(a), in deciding whether to grant “leave of court” for the Government to dismiss a criminal case.  Judge Sullivan had taken an expansive view of his role, even appointing an amicus (distinguished retired District Judge John Gleeson) to argue against the Government’s unopposed motion to dismiss. The majority found this appointment a “troubling indication” of the district court’s “mistaken understanding” of its role in ruling on an unopposed Rule 48(a) motion:

Whatever the extent of the district court’s “narrow” role under Rule 48(a), see Fokker Servs., 818 F.3d at 742, that role does not include designating an advocate to defend Flynn’s continued prosecution. The district court’s order put two “coequal branches of the Government … on a collision course.” Cheney, 542 U.S. at 389. The district court chose an amicus who had publicly advocated for a full adversarial process. Based on the record before us, the contemplated hearing could require the government to defend its charging decision on two fronts—answering the district court’s inquiries as well as combatting Gleeson’s arguments. Moreover, the district court’s invitation to members of the general public to appear as amici suggests anything but a circumscribed review. This sort of broadside inquiry would rewrite Rule 48(a)’s narrow “leave of court” provision.

The majority’s conclusion on the impropriety of appointing an amicus seems correct to me. In discharging his leave-of-court obligations, the district judge had no need to enlist advocates for a particular conclusion, particularly where the judge was well familiar with the details of the case.

The majority, however, stands on weaker footing in concluding that the district judge could not even hold a hearing on the dismissal motion.  As Judge Wilkins explained in his dissent,

it is not inconsistent with the separation of powers for a district court to conduct regular proceedings and afford consideration to a motion, even if the eventual grant or denial of the motion might intrude on the Executive’s exercise of his prosecutorial discretion. Again, this is not a case where we are being asked to decide whether the district judge may call the prosecutor to the stand or whether a Rule 48(a) motion may lead to an evidentiary hearing. This is a case about whether a district judge may even hold a hearing on a Rule 48(a) motion. While the selective-prosecution context is admittedly different than Rule 48(a), these cases nonetheless contradict the majority’s conclusion that holding a hearing, in and of itself, is a per se improper intrusion upon executive power. If the presumption of regularity does not prevent holding a hearing or independently examining prosecutorial discretion in the selective-prosecution context, there is no good reason why the presumption of regularity precludes a hearing on a motion to dismiss under Rule 48(a), disallowing any consideration whatsoever and forbidding the district court from expressing its views on the record with respect to its previous findings on materiality and guilt—all in the name of the separation of powers.

The majority rebutted this conclusion, arguing that “[t]his is not a case about whether ‘a district judge may even hold a hearing on a Rule 48(a) motion.’ Rather, it is about whether, after the government has explained why a prosecution is no longer in the public interest, the district judge may prolong the prosecution by … probing the government’s motives. On that, both the Constitution and cases are clear: he may not.”

The Constitution and the cases are not “clear” on this subject. Indeed, the majority’s reading of Rule 48(a) essentially turns it into a dead letter. Rule 48(a) specifically envisions some role–albeit a limited one–for the district court in evaluating motions to dismiss. It is hard to understand how the mere holding of a hearing on whether to grant leave of court is such an extraordinary abuse of power to warrant granting a writ of mandamus. On this point, I agree with former Judge Michael Luttig, who wrote in a prescient op-ed last month in the Washington Post that “[i]f the court of appeals were to order Sullivan to dismiss the case now, the full appeals court or, if not, the Supreme Court, should reverse that error.”

In venturing my conclusion that the district judge should have been allowed to hold a hearing, I don’t mean to comment on the ultimate merits of the underlying motion to dismiss from the Government. Indeed, if anything it sounds like the arguments favoring dismissal may have only grown stronger since the Government filed its motion. News reports yesterday suggest that additional exculpatory notes from Peter Strzok have surfaced recently that only further undercut the Government’s criminal case.

But the process is important here. Rule 48(a) requires “leave of court” before the Government can dismiss a case.  And that leave-of-court requirement exists not only for protecting defendant’s interests (as the majority opinion discusses) but also for protecting other interests, such as those crime victims (as the majority does not substantively discuss). As I explained in my earlier post on this case,

for the reasons I wrote about long ago in my earlier law review article, I continue to believe that judges should always be required to consider a crime victim’s views before dismissing a case. It may well be that most Government dismissal motions continue to be granted, even when a victim objects. But as a procedural matter, consideration of the victim’s view ensures greater fairness–and certainly greater perceived fairness–in the process.

This conclusion is reinforced by the drafting history of Rule 48(a), recently summarized nicely in a short, on-line piece by Thomas Frampton. As he explains, “Rule 48(a)’s ‘principal object’ was never ‘to protect a defendant against prosecutorial harassment,’ Rinaldi v. United States, 434 U.S. 22, 30 n.15 (1977) (per curiam). Rather, it was implemented to give district judges a modest means of safeguarding the public interest when evaluating a motion like the one that has been filed in United States v. Flynn.”

Other circuits have taken a more expansive view of the role of district judge’s under Rule 48(a) than did the D.C. Circuit today. I wouldn’t be surprised to see further review of this divided opinion–which essentially reads Rule 48(a)’s long standing leave-of-court requirement out of the rules of criminal procedure.

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Glenn Loury: ‘We’re Being Swept Along by Hysteria’ About Racism in America

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In the wake of the police killing of George Floyd in Minneapolis, protests have erupted around the country, calling attention to racial disparities in the way that black people are treated by the criminal justice system and by American society more generally.

Brown University’s Glenn Loury has emerged as one of the most vocal and outspoken critics of Black Lives Matter and other groups arguing that systemic racism is at the center of the African American experience in the United States today. Loury worries that our institutions are failing “to affirm the primacy of reason over violence in calibrating our reactions to the supposed ‘oppression,'” as he wrote in response to an open letter from his school’s administrators that highlighted “anger” at what they called an “ongoing epidemic of racism.”

The 72-year-old professor—the first African American to be granted tenure in Harvard’s economics department back in the 1970s—talked with Reason via Zoom about how the U.S. has changed for the better over his lifetime, why understanding history is vital to social change, and whether rational discourse has any purchase in social and political debates.

Edited by John Osterhoudt.

Photo credit: Loury at Harvard, Associated Press

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There’s Something for Everyone To Hate in Sen. Martha McSally’s Plan for Federally Subsidized Vacations

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Sen. Martha McSally (R–Ariz.) wants to use the tax code to subsidize middle-class Americans’ cross-country travel during the COVID-19 pandemic.

On Monday, the Arizona senator released the text of her Tax Rebate and Incentive Program (TRIP) Act, which would provide every American adult with a $4,000 tax credit they could spend on domestic vacations. Married couples who file jointly would qualify for an $8,000 tax credit, plus $500 for each child under 17.

“The tourism and hospitality industries were among the hardest hit sectors across the country and their revival is critical to our economic recovery,” McSally said in a press release. “My legislation will help boost domestic travel and jumpstart the comeback of our hotels, entertainment sectors, [and] local tourism agencies.”

The TRIP Act would allow taxpayers to write off money they spend on food, lodging, transportation, and live entertainment events, including sporting events for vacations they take between January 2020 and January 2022. This means McSally’s bill would subsidize vacations taken before the first COVID-19 lockdowns went into effect.

McSally’s bill also provides $50 million to support state and non-profit tourism marketing boards.

The travel tax credit would be nonrefundable, which means someone with no federal tax burden wouldn’t be able to make use of it. That limits the costs of the tax credit but also ensures that its benefits will accrue mostly to wealthier taxpayers.

Bloomberg reporter Steven Dennis notes that the credit doesn’t come with an income cap either, meaning even the highest income earners could claim it.

The bill has received some qualified support from former Democratic presidential candidate Andrew Yang.

President Donald Trump expressed support for an “Explore America” tax credit last month, although he gave few details about the policy.

The idea for a travel tax credit appears to be the brainchild of the U.S. Travel Association. The trade lobby has proposed a temporary $4,000 tax credit per household that could be spent on qualifying travel expenses like rental cars and restaurant meals.

Given how long everyone has been cooped up inside, the idea of a little getaway sounds pretty nice. Nevertheless, there’s something for everyone to hate in McSally’s proposal.

The fact that it’d effectively subsidize only middle- and upper-class tourists should irk progressives, who’d rather see the government spend money on unemployment benefits and other programs. Paid vacations, progressives argue, should be the mandated responsibility of employers.

 

Deficit hawks, meanwhile, should oppose a massive new tax credit that comes with no spending offsets, given the trillions in new spending Congress has already approved to combat the economic impact of COVID-19.

Public health scolds would be on solid ground when criticizing the TRIP Act for subsidizing non-essential travel in the middle of a deadly pandemic.

Critics of crony capitalism should be aghast at the idea that McSally’s travel tax credit is double what the travel industry itself has proposed.

While libertarians might like the idea of a tax cut in the middle of a recession, the TRIP Act contains too much behavioral micromanagement: Taxpayers could only reclaim some of the money they owe the federal government if they take a vacation before January 2022, and if that vacation takes them farther than 50 miles from their home but not outside the U.S.

No matter your politics, McSally’s TRIP Act is a terrible idea. Taxpayers should tell her to take a hike.

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Glenn Loury: ‘We’re Being Swept Along by Hysteria’ About Racism in America

8069418_thumbnail

In the wake of the police killing of George Floyd in Minneapolis, protests have erupted around the country, calling attention to racial disparities in the way that black people are treated by the criminal justice system and by American society more generally.

Brown University’s Glenn Loury has emerged as one of the most vocal and outspoken critics of Black Lives Matter and other groups arguing that systemic racism is at the center of the African American experience in the United States today. Loury worries that our institutions are failing “to affirm the primacy of reason over violence in calibrating our reactions to the supposed ‘oppression,'” as he wrote in response to an open letter from his school’s administrators that highlighted “anger” at what they called an “ongoing epidemic of racism.”

The 72-year-old professor—the first African American to be granted tenure in Harvard’s economics department back in the 1970s—talked with Reason via Zoom about how the U.S. has changed for the better over his lifetime, why understanding history is vital to social change, and whether rational discourse has any purchase in social and political debates.

Edited by John Osterhoudt.

Photo credit: Loury at Harvard, Associated Press

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via IFTTT