A federal judge can and should agree to the Department of Justice’s request to drop charges against former national security adviser Michael Flynn, a federal appeals court panel ruled today.
The Justice Department in May moved to get charges against Flynn dismissed. Flynn pleaded guilty to lying to the FBI in 2016 about his communications with Russian Ambassador Sergei Kislyak as Trump’s campaign was being investigated over concerns that they were being influenced by the Russian government.
Flynn later attempted to retract his guilty plea, and then earlier this year, representatives from the Department of Justice submitted a motion agreeing with Flynn, stating that they now believe that the intelligence investigation against Flynn lacked a legitimate basis and that his lies to the FBI were not actually material to an investigation.
This was a rather unusual move from the Department of Justice, which has a lengthy record of vociferously defending the prosecution of individuals who have lied to investigators. Rather than accepting the request, U.S. District Judge Emmett Sullivan brought in former federal judge John Gleeson to analyze the case and make an independent recommendation. Gleeson blasted the way the Justice Department was handling the case, arguing that Flynn was being treated differently by the Justice Department due to his relationship with Trump. He recommended that Sullivan move forward and sentence Flynn for his guilty plea. Sullivan had scheduled a hearing in July for attorneys to make their cases.
Flynn’s attorneys turned to the D.C. Circuit of the U.S. Court of Appeals to attempt to force Sullivan to accept the Justice Department’s request to dismiss the charges. Today, a panel of judges agreed, 2–1, with Flynn and the Justice Department.
Judge Neomi Rao, a Trump appointee, wrote the majority opinion, and its focus was on the many longstanding court precedents giving prosecutors and the executive branch (not judges) the discretion to determine whether to drop a case.
“These clearly established legal principles and the Executive’s ‘long-settled primacy over charging decisions,’ foreclose the district court’s proposed scrutiny of the government’s motion to dismiss the Flynn prosecution,” Rao wrote. “A hearing may sometimes be appropriate before granting leave of court…however, a hearing cannot be used as an occasion to superintend the prosecution’s charging decisions, because ‘authority over criminal charging decisions resides fundamentally with the Executive, without the involvement of—and without oversight power in—the Judiciary.'”
Judge Robert Wilkins, appointed by President Barack Obama, dissented, writing that it was extremely unusual for the Court of Appeals to force a ruling requiring Sullivan to rule a certain way rather than waiting for Sullivan to issue his own ruling and then deciding whether or not that ruling was legally correct.
This ruling is not the end of the matter. Sullivan can request for a full en banc hearing by the full D.C. Circuit of the U.S. Court of Appeals rather than just a panel, and a judge in the court could also call for a vote for such a hearing.
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Texas Gov. Greg Abbott (R) is officially alarmed by the continuing rise in his state’s daily tally of confirmed COVID-19 cases, which yesterday totaled nearly 5,500, a new record. Nationwide, newly detected infections have been rising this month, but the upward trend in Texas is especially striking. Abbott warns that new restrictions may be necessary to curb the outbreak, which he says is driven largely by young people who are flouting social distancing guidelines.
That explanation highlights a conflict between the interests of Texans who face very little personal risk from the COVID-19 virus and the interests of Texans who are especially vulnerable to the disease. But it also highlights the conflict between preventing virus transmission and achieving herd immunity, which would ultimately protect high-risk groups from a potentially deadly threat.
The shifting age distribution of COVID-19 infections in Texas and several other states suggests that herd immunity might be achieved without a big increase in deaths, assuming that people in high-risk groups can be adequately protected in the meantime. Opponents of that strategy, which involves trading more deaths now for fewer deaths later, argue that it’s reckless because we can’t be sure what the net effect will be. They add that preventing transmission buys time to develop better treatments and deploy an effective vaccine, an approach that could reduce the ultimate death toll.
As a Texas resident whose wife takes an immunosuppressive medication for a neurodegenerative disease, I have a personal stake in this debate. Given my age and health status, my own risk of dying from COVID-19 is low. It is even lower for our three daughters, who range in age from 14 to 27. Our oldest daughter, who had symptoms consistent with COVID-19 in March, may already be immune; she is waiting for the results of an antibody test. But because we are trying not to kill my wife (we are very considerate that way), we have been extra cautious about limiting our interactions with other people, even as legal restrictions on movement and economic activity have been lifted.
At the same time, I can understand the perspective of young, healthy people who chafe at social distancing rules of uncertain duration. Abbott notes that Texans younger than 30 account for a growing share of new infections. “There are certain counties where a majority of the people who are tested positive in that county are under the age of 30, and this typically results from people going to bars,” he said during a press conference last week. He suggested that the dramatic increase in cases that Texas has seen since late May can be traced to gatherings on Memorial Day weekend, when people who might not have seen each other for months got together in close proximity.
Those people have been widely portrayed as reckless idiots who do not consider the danger they could pose to their grandparents or other vulnerable people by picking up and transmitting the virus. While their own symptoms are apt to be mild or nonexistent, that may not be true of people they subsequently encounter, and their own resilience makes it more likely that they will carry the virus without realizing it. If they are not scrupulous about avoiding close contact with vulnerable people, they could unwittingly endanger their lives.
All of that is true, which is why I am especially keen to keep my wife from interacting with young people who behave the way that young people tend to behave. But it may be too much to expect them to indefinitely suspend their social lives because of a disease that poses very little risk to them or their friends. And while I doubt they are motivated by a prosocial desire to protect high-risk individuals through herd immunity, that could be an unintentional side effect of their self-interested defiance. Over the short term, they are raising the risk to vulnerable people by increasing the prevalence of the virus. But over the longer term, they could be protecting those people by increasing the prevalence of immunity and cutting chains of transmission.
I am not at all sure that’s a risk worth taking, since the answer depends on how many more infections are necessary to achieve herd immunity and how soon effective treatments and vaccines will be available. But we may not have a choice.
If rising infections in states such as Texas, California, Arizona, and Florida (which yesterday saw a record increase in new confirmed cases) represent a new normal rather than a one-time jump tied to social gatherings on Memorial Day weekend, it will be hard to put the genie back in the bottle, regardless of any legal restrictions politicians decide to reimpose. Given the impracticality of mass enforcement, social distancing has always required voluntary compliance, and the willingness to comply seems to be waning, partly because of sheer impatience but also because the experience with ham-handed, economically devastating, and frequently arbitrary lockdowns has left many people bitter and disinclined to follow official recommendations.
Assuming that large numbers of Americans are not willing to sit tight until vaccines and/or better treatments can be deployed, what will that mean for the COVID-19 death toll? On that score, there is some reason for (relative) optimism.
While I could not find data breaking down new Texas cases by age, the changing distribution of total cases confirms Abbott’s point that newly infected people are younger now than they were earlier in the epidemic. As of yesterday, people older than 65 accounted for 15 percent of total confirmed cases in Texas, down from 22 percent on April 21. The share of cases involving people younger than 40 rose from 32 percent to 41 percent during the same period. Consistent with Abbott’s gloss, the biggest jump was in 20-to-29-year-olds, whose share of all confirmed cases rose from 13 percent to 17 percent.
Those comparisons understate the change in recently detected infections, which is the relevant consideration in projecting COVID-19 deaths. In Florida, the median age of newly identified patients plummeted from 65 in early March to 35 last week. In California, according to an analysis released last week, 44 percent of newly diagnosed cases involved people 34 or younger, up from 29 percent a month earlier. The share of new cases involving people older than 50, meanwhile, fell from 46 percent to 30.5 percent.
Why is that good news? Last month the U.S. Centers for Disease Control and Prevention (CDC) estimated that the risk of death for people with COVID-19 symptoms is just 0.05 percent among patients younger than 50. That risk rises to 0.2 percent among 50-to-64-year-olds and 1.3 percent among people 65 or older. In other words, those reckless idiots getting together in bars are correct in thinking that the risk for them is negligible, even if they overlook the fact that the risk for the oldest age group is much higher—26 times as high, according to the CDC’s estimate.
While recent increases in COVID-19 infections can be expected to result in some additional deaths in the next few weeks, the consequences will not be nearly as bad as they would be if the new patients were older. The changing age distribution of cases helps explain why the nationwide tally of daily COVID-19 deaths, which has fallen dramatically since April, continued to decline long after states began lifting their lockdowns at the end of that month. Youyang Gu’s epidemiological model, which has a good track record of predicting COVID-19 fatalities, currently projects that daily deaths in the United States will continue to decline until early July, then rise through mid-August, exceeding the current level by late July, before declining again through September, dropping below the current level by the middle of that month.
“With younger age of recent infections in at least some places such as Florida,” former CDC Director Tom Frieden tweeted this week, “expect a lower death rate in this wave…until the 20-40-year-olds who are infected today go on to infect others.” The implication is that we will eventually see a big surge in COVID-19 deaths as younger, healthier Americans relatively unscathed by the virus pass it on to others who are more vulnerable. But that is not a foregone conclusion. As always, it depends on the precautions that people take, and the onus for those seems to be shifting from the population at large to people in high-risk groups. We can debate whether or not that is fair, but it will not change the reality.
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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.
I’ve seen enough: Jamaal Bowman (D) has defeated 16-term Rep. Eliot Engel (D) in the #NY16 primary.
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.).
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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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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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.
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.”
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.
I took this pic- it got me assaulted & beat up. Punched/kicked in the head, neck, ribs. Maybe concussion, socked in left eye is little blurry, sore neck & ribs. 8-10 people attacked me. Innocent people are going to get killed. Capitol locked- stuck in office.Stop violence nowPlz! pic.twitter.com/Zw2hdfYG66
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 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 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.”
This is very troubling. The Susan Rice email to herself clearly didn’t give an accurate portrayal of the meeting.
The “right people” is fundamentally different than “by the book”. https://t.co/AYs3oZ7qaX
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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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 triplewhat 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.
via ZeroHedge News https://ift.tt/2BADNVS Tyler Durden
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.
I’ve seen enough: Jamaal Bowman (D) has defeated 16-term Rep. Eliot Engel (D) in the #NY16 primary.
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.).
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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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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