Mitigating Tyranny: Lockdowns and Flynn

Almost 200 hundred years ago the genius Alexis De Tocqueville observed how the distribution of power and law enforcement mitigated tyranny in the United States.  

The national majority does not pretend to conduct all business – Is obliged to employ the town and county magistrates to execute its supreme decisions.

I have already pointed out the distinction which is to be made between a centralized government and a centralized administration. The former exists in America, but the latter is nearly unknown there. If the directing power of the American communities had both these instruments of government at its disposal, and united the habit of executing its own commands to the right of commanding; if, after having established the general principles of government, it descended to the details of public business; and if, having regulated the great interests of the country, it could penetrate into the privacy of individual interests, freedom would soon be banished from the New World.

But in the United States the majority, which so frequently displays the tastes and the propensities of a despot, is still destitute of the more perfect instruments of tyranny. In the American republics the activity of the central Government has never as yet been extended beyond a limited number of objects sufficiently prominent to call forth its attention. The secondary affairs of society have never been regulated by its authority, and nothing has hitherto betrayed its desire of interfering in them. The majority is become more and more absolute, but it has not increased the prerogatives of the central government; those great prerogatives have been confined to a certain sphere; and although the despotism of the majority may be galling upon one point, it cannot be said to extend to all. However the predominant party in the nation may be carried away by its passions, however ardent it may be in the pursuit of its projects, it cannot oblige all the citizens to comply with its desires in the same manner and at the same time throughout the country. When the central Government which represents that majority has issued a decree, it must entrust the execution of its will to agents, over whom it frequently has no control, and whom it cannot perpetually direct. The townships, municipal bodies, and counties may therefore be looked upon as concealed break-waters, which check or part the tide of popular excitement. If an oppressive law were passed, the liberties of the people would still be protected by the means by which that law would be put in execution: the majority cannot descend to the details and (as I will venture to style them) the puerilities of administrative tyranny. Nor does the people entertain that full consciousness of its authority which would prompt it to interfere in these matters; it knows the extent of its natural powers, but it is unacquainted with the increased resources which the art of government might furnish.

This point deserves attention, for if a democratic republic similar to that of the United States were ever founded in a country where the power of a single individual had previously subsisted, and the effects of a centralized administration had sunk deep into the habits and the laws of the people, I do not hesitate to assert, that in that country a more insufferable despotism would prevail than any which now exists in the monarchical States of Europe, or indeed than any which could be found on this side of the confines of Asia.

Of course, in the passage of time, the federal government and the administrative state have grown substantially, but his central point – that we do not have uniform enforcement of the rulings by a central government – is still valid.

If we substitute for central national authority (the federal government) the power of state governors, we see his wise point: sheriffs and local courts are needed to enforce their authority and will not -- and should not under the Constitution -- bow to despotism.

The increasing rebellion of the people against the state-ordered lockdowns confirms to me the wisdom of this observation. 

The Lockdown Rebellions

For reasons not based on science, but on fearmongering by the press and autocratic leanings of some governors (for the most part, Democratic Governors Cuomo, Newsom, Whitmer, Evers, Northam, and Inslee) draconian lockdown measures were instituted by executive order. These orders were often backed up by health commissioners, themselves ill-equipped by education or experience to offer sound advice. The consequences of these actions have been to jeopardize the health of the poorest and most vulnerable and destroy the livelihoods of those not able to work from home or on academic and government payrolls. At the same time, they released from prison some really hardcore prisoners, ostensibly to protect them from the virus. In sum, they have most harmed the members of the very lowest tranches of the economy, which they have always claimed to represent. The rebellion against the orders by affected citizens and courts continues. 

Counties, municipalities, and sheriffs are refusing to enforce these orders. My favorite is the sheriff of Fresno, California, who said she was too busy rounding up the criminals Governor Newsom had released to bother enforcing his lockdown edicts. In Michigan, Gretchen Whitmer pursued a vendetta against a barber who, denied compensation for his loss of income, kept his shop operating. There a local judge denied Michigan a temporary injunction against him.

The stupidity of these orders is clear. We now believe that the number of infections in China from the Wuhan virus was 640,000.  "What makes that 640,000 infections number even more shocking is the brutal Chinese shutdown, unheard of anywhere else in the world, should have limited the number of infections dramatically. It didn’t.”

Elsewhere doctors and dentists, who offices are certainly sanitary, are challenging the orders preventing them from seeing patients except on an emergency basis. Some are challenging them on the ground that their patients’ health is being jeopardized by the prohibition on elective surgeries. It seems to me that unless the government can establish that lockdown orders can halt the virus’s spread and that there are no less onerous means to limit contagion, it should lose.  As I wrote:

Are rules less restrictive of liberties options available? If there are, then the restrictions should fail.

So many of the restrictions, it seems to me, require defending in transparently open court proceedings. Does the requirement we wear masks really prevent the spread of the disease? Expert opinion is divided. Is it wise, in fact, to restrict movement of citizens or should we allow greater mingling to build herd immunity? Again expert opinion is divided. Is it better to prevent people from using parks and beaches, or is the sunlight, exercise and fresh air a better antidote to the spread of the virus or at least its virility? Our courts deal with such issues every day. Let’s have the governors defend their actions instead of blindly following along or listening to one set of “experts” and ignoring conflicting views.

So many of the restrictions seem ill considered and incomprehensible, if not totally indefensible. Let the state persuade a court that it's perfectly reasonable to shut down my dentist’s and doctor’s enterprises even though both can and do sanitize all surfaces and can arrange it so patients will be notified by mobile phone of readiness to see them so that patients will not enter their offices and have to sit with others in the waiting room. Let the states defend arresting a surfer, far from anyone else, while permitting shopping in big box stores.  Let Michigan defend refusing to permit Detroit residents from going to their vacation homes in rural areas less densely populated, or permitting kayaking but not motor boating. Waiting to see any defense of actions like arresting a father for playing in a deserted park with his two children or worshippers praying in a church parking lot while sitting in their cars with the windows up.

The Flynn Case

Tocqueville’s observations on criminal justice also bear on the Flynn case.

Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate. 

The Flynn case was instituted for purely political reasons and its dismissal challenged for those same reasons.

This week, Judge Emmet G. Sullivan responded to the government’s motion to dismiss the case against General Michael Flynn in a most astonishing and, to my knowledge, unprecedented way. Tweets by “undercover Huber“ show the way the prosecution manipulated the Flynn guilty plea with media connivance. 

Beginning on November 1, 2017, his then lawyers sought the recorded FBI notes of his interview (FD-302). The notes indicated those who interviewed him believed he was not lying. The special counsel’s office refused to provide them on the ground that it would  “reveal” parts of their investigation into Russian Collusion. Those notes, even after illegal “editing” by Peter Strzok and Lisa Page, reveal that he was never even asked about Russian interference or collusion. Indeed, the FBI recommended closing the case, until political considerations by people including Strzok and Page led to prolonging it for reasons of partisan animus. The refusal to turn over this exculpatory report, mandated by the Brady doctrine, was purely pretextual to keep him from fighting vigorously the charges, charges his lawyers adamantly believed were unfounded. Instead, on November 5, the special counsel lawyers leaked to the press (NBC’s Julia Ainsley, Carol E. Lee and Ken Dilanian) that unless he pled guilty his son would be charged with a felony.  Their report, they said, relied on  “three sources” close to the matter and received wide press coverage.

By the time Covington followed up with the [Special Counsel’s Office] after this weekend of light reading of veiled threats for the Flynn family, they’ve already agreed to bring Flynn in for a “proffer” -- a prelude to pleading guilty to the false statements offense.

In sum, special counsel lawyers used the media, leaking a threat to Flynn, to induce him to plead guilty when he wasn’t, and did so to avoid turning over documents in their possession which established his innocence.

As his present counsel Sidney Powell showed, the prosecutors also made a deal at the time not to prosecute Flynn’s son in a side agreement which they made in such a way as to avoid having to reveal it to the court as they were required to do.

Powell presented a spirited case that the prosecution was not properly founded and the attorney general appointed a U.S. Attorney, Jeff Jensen, to investigate the matter. Based on Jensen’s review, including newly discovered documentation, he recommended that the case be dismissed and the government joined the defense in seeking dismissal. 

Following their usual tactics of smearing anyone who interferes with their agenda by capturing media and public attention and distracting from the evidence, the left rounded up thousands of DoJ alumni and some former Watergate prosecutors to object to ending the years-long pillorying and financial ruination of Flynn. As well, they obviously hoped to avert attention from the special counsel’s teams’ malfeasance and the lack of a justiciable criminal claim. It seems briefly to have worked on the court.  Judge Sullivan entered an order indicating that he’d allow some friend of court briefs. Additionally, he appointed an outside counsel, John Gleason (who had earlier written an op-ed asserting the dismissal motion was occasioned by improper political influence) to argue that Flynn should be charged with perjury for having earlier  admitted guilt. Due to a judicial error, however, Flynn never admitted that whatever he said to the FBI was “material,” and the main thrust of Barr’s action was that nothing Flynn said was “material” to a claim of election interference or collusion. There was none, and he was, as we’ve shown, never even asked about it.

The procedure Judge Sullivan has outlined will doubtless drag this case on for months if not halted. Particularly ridiculous is the judge’s suggestion in the appointment of outside counsel that pleading guilty to a crime you didn’t commit is perjury. 

Some 95% of felony convictions in America [per the Innocence Project] are obtained through guilty pleas. Among persons known to be exonerated, it reports, a staggering 18% pleaded guilty to crimes they didn’t commit. It is a humbling statistic for those of us who cover the courts. The filing of a guilty plea by an innocent party occurs at a pace that leaves GuiltyPleaProblem.com saying: “there’s no telling how many are behind bars as a result.”

So where are the liberals now? Where’s the logic of Judge Sullivan getting up on his high horse over the idea that someone in his court might move to withdraw a guilty plea? The idea that General Flynn was uncomfortable with his own plea deal can’t be a surprise to the judge. It was already in the air when the judge erupted at the general at a now-infamous hearing in open court back in December 2018.

That’s the hearing at which the judge declared, “I’m not hiding my disgust, my disdain, for this criminal offense.” With the judge listing the general’s misdeeds, the Washington Post reported at the time, “was not how Flynn’s supporters or Trump thought Tuesday’s sentencing hearing would unfold.” They’d hoped Judge Sullivan would be the one “who would reveal overreach by special counsel Robert S. Mueller III and the FBI.”

At the time the Post noted, “Some Flynn allies even speculated the judge might toss out Flynn’s guilty plea and clear his name.” Instead, the judge balked. So imagine how humiliated Judge Sullivan must feel now. He failed, after all, to see, or unearth, the abuses by the FBI brass and the Special Counsel’s prosecutors. The Justice Department itself beat the judge to the story of the abuses by the Justice Department’s own officers.

Two cases, one by the Supreme Court, another penned by chief of the D.C. Court of Appeals Sri Srinivasin, an Obama appointee, suggest that the judge -- perhaps just for reasons of pique -- is way over his skis. The first case is a unanimous Supreme Court decision written by Judge Ruth Bader Ginsburg: “in U.S. v. Sineneng-Smith, in which the Supreme Court reversed a Ninth Circuit ruling striking down a criminal statute involving immigration as unconstitutionally overbroad. The case was overturned because instead of adjudicating the issues raised by the parties, the Ninth Circuit panel invited outside groups to brief them about a defense the defendant never raised.” In the second, U.S. v. Fokker, Judge Srinivasin swatted a lower court judge who refused to accept a deferred prosecution agreement.  

“[D]ecisions  to dismiss pending criminal charges -- no less than decisions to initiate charges and to identify which charges to bring -- lie squarely within the ken of prosecutorial discretion,” said the court. It quoted the court’s 1967 precedent, Newman v. U.S.: “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.”

The Fokker case arose upon the petition for a Writ of Mandamus, a procedure which allows a higher court to compel a judge to do something -- in the Flynn case, dismiss it. There is another extraordinary writ, a Writ of Prohibition, by which the upper court can prohibit a lower court from acting on the basis that court does not have jurisdiction to do so -- here it would be against the appointment of Gleason to argue that Flynn committed perjury in pleading guilty, something the government has never contended.

I expect that very early this coming week, we can expect the defense and the government to seek extraordinary writs and get them. 

Almost 200 hundred years ago the genius Alexis De Tocqueville observed how the distribution of power and law enforcement mitigated tyranny in the United States.  

The national majority does not pretend to conduct all business – Is obliged to employ the town and county magistrates to execute its supreme decisions.

I have already pointed out the distinction which is to be made between a centralized government and a centralized administration. The former exists in America, but the latter is nearly unknown there. If the directing power of the American communities had both these instruments of government at its disposal, and united the habit of executing its own commands to the right of commanding; if, after having established the general principles of government, it descended to the details of public business; and if, having regulated the great interests of the country, it could penetrate into the privacy of individual interests, freedom would soon be banished from the New World.

But in the United States the majority, which so frequently displays the tastes and the propensities of a despot, is still destitute of the more perfect instruments of tyranny. In the American republics the activity of the central Government has never as yet been extended beyond a limited number of objects sufficiently prominent to call forth its attention. The secondary affairs of society have never been regulated by its authority, and nothing has hitherto betrayed its desire of interfering in them. The majority is become more and more absolute, but it has not increased the prerogatives of the central government; those great prerogatives have been confined to a certain sphere; and although the despotism of the majority may be galling upon one point, it cannot be said to extend to all. However the predominant party in the nation may be carried away by its passions, however ardent it may be in the pursuit of its projects, it cannot oblige all the citizens to comply with its desires in the same manner and at the same time throughout the country. When the central Government which represents that majority has issued a decree, it must entrust the execution of its will to agents, over whom it frequently has no control, and whom it cannot perpetually direct. The townships, municipal bodies, and counties may therefore be looked upon as concealed break-waters, which check or part the tide of popular excitement. If an oppressive law were passed, the liberties of the people would still be protected by the means by which that law would be put in execution: the majority cannot descend to the details and (as I will venture to style them) the puerilities of administrative tyranny. Nor does the people entertain that full consciousness of its authority which would prompt it to interfere in these matters; it knows the extent of its natural powers, but it is unacquainted with the increased resources which the art of government might furnish.

This point deserves attention, for if a democratic republic similar to that of the United States were ever founded in a country where the power of a single individual had previously subsisted, and the effects of a centralized administration had sunk deep into the habits and the laws of the people, I do not hesitate to assert, that in that country a more insufferable despotism would prevail than any which now exists in the monarchical States of Europe, or indeed than any which could be found on this side of the confines of Asia.

Of course, in the passage of time, the federal government and the administrative state have grown substantially, but his central point – that we do not have uniform enforcement of the rulings by a central government – is still valid.

If we substitute for central national authority (the federal government) the power of state governors, we see his wise point: sheriffs and local courts are needed to enforce their authority and will not -- and should not under the Constitution -- bow to despotism.

The increasing rebellion of the people against the state-ordered lockdowns confirms to me the wisdom of this observation. 

The Lockdown Rebellions

For reasons not based on science, but on fearmongering by the press and autocratic leanings of some governors (for the most part, Democratic Governors Cuomo, Newsom, Whitmer, Evers, Northam, and Inslee) draconian lockdown measures were instituted by executive order. These orders were often backed up by health commissioners, themselves ill-equipped by education or experience to offer sound advice. The consequences of these actions have been to jeopardize the health of the poorest and most vulnerable and destroy the livelihoods of those not able to work from home or on academic and government payrolls. At the same time, they released from prison some really hardcore prisoners, ostensibly to protect them from the virus. In sum, they have most harmed the members of the very lowest tranches of the economy, which they have always claimed to represent. The rebellion against the orders by affected citizens and courts continues. 

Counties, municipalities, and sheriffs are refusing to enforce these orders. My favorite is the sheriff of Fresno, California, who said she was too busy rounding up the criminals Governor Newsom had released to bother enforcing his lockdown edicts. In Michigan, Gretchen Whitmer pursued a vendetta against a barber who, denied compensation for his loss of income, kept his shop operating. There a local judge denied Michigan a temporary injunction against him.

The stupidity of these orders is clear. We now believe that the number of infections in China from the Wuhan virus was 640,000.  "What makes that 640,000 infections number even more shocking is the brutal Chinese shutdown, unheard of anywhere else in the world, should have limited the number of infections dramatically. It didn’t.”

Elsewhere doctors and dentists, who offices are certainly sanitary, are challenging the orders preventing them from seeing patients except on an emergency basis. Some are challenging them on the ground that their patients’ health is being jeopardized by the prohibition on elective surgeries. It seems to me that unless the government can establish that lockdown orders can halt the virus’s spread and that there are no less onerous means to limit contagion, it should lose.  As I wrote:

Are rules less restrictive of liberties options available? If there are, then the restrictions should fail.

So many of the restrictions, it seems to me, require defending in transparently open court proceedings. Does the requirement we wear masks really prevent the spread of the disease? Expert opinion is divided. Is it wise, in fact, to restrict movement of citizens or should we allow greater mingling to build herd immunity? Again expert opinion is divided. Is it better to prevent people from using parks and beaches, or is the sunlight, exercise and fresh air a better antidote to the spread of the virus or at least its virility? Our courts deal with such issues every day. Let’s have the governors defend their actions instead of blindly following along or listening to one set of “experts” and ignoring conflicting views.

So many of the restrictions seem ill considered and incomprehensible, if not totally indefensible. Let the state persuade a court that it's perfectly reasonable to shut down my dentist’s and doctor’s enterprises even though both can and do sanitize all surfaces and can arrange it so patients will be notified by mobile phone of readiness to see them so that patients will not enter their offices and have to sit with others in the waiting room. Let the states defend arresting a surfer, far from anyone else, while permitting shopping in big box stores.  Let Michigan defend refusing to permit Detroit residents from going to their vacation homes in rural areas less densely populated, or permitting kayaking but not motor boating. Waiting to see any defense of actions like arresting a father for playing in a deserted park with his two children or worshippers praying in a church parking lot while sitting in their cars with the windows up.

The Flynn Case

Tocqueville’s observations on criminal justice also bear on the Flynn case.

Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate. 

The Flynn case was instituted for purely political reasons and its dismissal challenged for those same reasons.

This week, Judge Emmet G. Sullivan responded to the government’s motion to dismiss the case against General Michael Flynn in a most astonishing and, to my knowledge, unprecedented way. Tweets by “undercover Huber“ show the way the prosecution manipulated the Flynn guilty plea with media connivance. 

Beginning on November 1, 2017, his then lawyers sought the recorded FBI notes of his interview (FD-302). The notes indicated those who interviewed him believed he was not lying. The special counsel’s office refused to provide them on the ground that it would  “reveal” parts of their investigation into Russian Collusion. Those notes, even after illegal “editing” by Peter Strzok and Lisa Page, reveal that he was never even asked about Russian interference or collusion. Indeed, the FBI recommended closing the case, until political considerations by people including Strzok and Page led to prolonging it for reasons of partisan animus. The refusal to turn over this exculpatory report, mandated by the Brady doctrine, was purely pretextual to keep him from fighting vigorously the charges, charges his lawyers adamantly believed were unfounded. Instead, on November 5, the special counsel lawyers leaked to the press (NBC’s Julia Ainsley, Carol E. Lee and Ken Dilanian) that unless he pled guilty his son would be charged with a felony.  Their report, they said, relied on  “three sources” close to the matter and received wide press coverage.

By the time Covington followed up with the [Special Counsel’s Office] after this weekend of light reading of veiled threats for the Flynn family, they’ve already agreed to bring Flynn in for a “proffer” -- a prelude to pleading guilty to the false statements offense.

In sum, special counsel lawyers used the media, leaking a threat to Flynn, to induce him to plead guilty when he wasn’t, and did so to avoid turning over documents in their possession which established his innocence.

As his present counsel Sidney Powell showed, the prosecutors also made a deal at the time not to prosecute Flynn’s son in a side agreement which they made in such a way as to avoid having to reveal it to the court as they were required to do.

Powell presented a spirited case that the prosecution was not properly founded and the attorney general appointed a U.S. Attorney, Jeff Jensen, to investigate the matter. Based on Jensen’s review, including newly discovered documentation, he recommended that the case be dismissed and the government joined the defense in seeking dismissal. 

Following their usual tactics of smearing anyone who interferes with their agenda by capturing media and public attention and distracting from the evidence, the left rounded up thousands of DoJ alumni and some former Watergate prosecutors to object to ending the years-long pillorying and financial ruination of Flynn. As well, they obviously hoped to avert attention from the special counsel’s teams’ malfeasance and the lack of a justiciable criminal claim. It seems briefly to have worked on the court.  Judge Sullivan entered an order indicating that he’d allow some friend of court briefs. Additionally, he appointed an outside counsel, John Gleason (who had earlier written an op-ed asserting the dismissal motion was occasioned by improper political influence) to argue that Flynn should be charged with perjury for having earlier  admitted guilt. Due to a judicial error, however, Flynn never admitted that whatever he said to the FBI was “material,” and the main thrust of Barr’s action was that nothing Flynn said was “material” to a claim of election interference or collusion. There was none, and he was, as we’ve shown, never even asked about it.

The procedure Judge Sullivan has outlined will doubtless drag this case on for months if not halted. Particularly ridiculous is the judge’s suggestion in the appointment of outside counsel that pleading guilty to a crime you didn’t commit is perjury. 

Some 95% of felony convictions in America [per the Innocence Project] are obtained through guilty pleas. Among persons known to be exonerated, it reports, a staggering 18% pleaded guilty to crimes they didn’t commit. It is a humbling statistic for those of us who cover the courts. The filing of a guilty plea by an innocent party occurs at a pace that leaves GuiltyPleaProblem.com saying: “there’s no telling how many are behind bars as a result.”

So where are the liberals now? Where’s the logic of Judge Sullivan getting up on his high horse over the idea that someone in his court might move to withdraw a guilty plea? The idea that General Flynn was uncomfortable with his own plea deal can’t be a surprise to the judge. It was already in the air when the judge erupted at the general at a now-infamous hearing in open court back in December 2018.

That’s the hearing at which the judge declared, “I’m not hiding my disgust, my disdain, for this criminal offense.” With the judge listing the general’s misdeeds, the Washington Post reported at the time, “was not how Flynn’s supporters or Trump thought Tuesday’s sentencing hearing would unfold.” They’d hoped Judge Sullivan would be the one “who would reveal overreach by special counsel Robert S. Mueller III and the FBI.”

At the time the Post noted, “Some Flynn allies even speculated the judge might toss out Flynn’s guilty plea and clear his name.” Instead, the judge balked. So imagine how humiliated Judge Sullivan must feel now. He failed, after all, to see, or unearth, the abuses by the FBI brass and the Special Counsel’s prosecutors. The Justice Department itself beat the judge to the story of the abuses by the Justice Department’s own officers.

Two cases, one by the Supreme Court, another penned by chief of the D.C. Court of Appeals Sri Srinivasin, an Obama appointee, suggest that the judge -- perhaps just for reasons of pique -- is way over his skis. The first case is a unanimous Supreme Court decision written by Judge Ruth Bader Ginsburg: “in U.S. v. Sineneng-Smith, in which the Supreme Court reversed a Ninth Circuit ruling striking down a criminal statute involving immigration as unconstitutionally overbroad. The case was overturned because instead of adjudicating the issues raised by the parties, the Ninth Circuit panel invited outside groups to brief them about a defense the defendant never raised.” In the second, U.S. v. Fokker, Judge Srinivasin swatted a lower court judge who refused to accept a deferred prosecution agreement.  

“[D]ecisions  to dismiss pending criminal charges -- no less than decisions to initiate charges and to identify which charges to bring -- lie squarely within the ken of prosecutorial discretion,” said the court. It quoted the court’s 1967 precedent, Newman v. U.S.: “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.”

The Fokker case arose upon the petition for a Writ of Mandamus, a procedure which allows a higher court to compel a judge to do something -- in the Flynn case, dismiss it. There is another extraordinary writ, a Writ of Prohibition, by which the upper court can prohibit a lower court from acting on the basis that court does not have jurisdiction to do so -- here it would be against the appointment of Gleason to argue that Flynn committed perjury in pleading guilty, something the government has never contended.

I expect that very early this coming week, we can expect the defense and the government to seek extraordinary writs and get them.