Michael Flynn – Sheila Kennedy

Living In Wacko World

There is much that I don’t understand about the Americans who continue to support Donald Trump and the Big Lie. There’s even more I don’t understand about today’s GOP, which looks absolutely nothing like the political party to which I devoted some 35 years.

Here’s a smattering of what I don’t get:

How do these people explain away the hysterical refusal of the Trump mob to testify to Congress or hand over documents? If they have nothing to hide, why would they act this way? From my lawyering days, I still remember the concern of criminal defense lawyers that a client’s failure to testify would be taken by a jury as evidence that the client had something to hide; in fact, there was a standard (and undoubtedly ineffective) jury instruction to the effect that the jury should refrain from making that obvious assumption.
How do they justify the rage and recriminations focused on the few members of the GOP who voted to repair the nation’s decaying infrastructure–especially when Trump tried and failed for four years to have his own “Infrastructure week”? Don’t they drive on our crumbling roads and worry about our failing bridges? How do they explain to themselves and others the GOP insistence that defeating anything President Biden wants is more important than actually getting things that obviously need to be done, done?
What in the world prompts Republicans to threaten “reprisals” for the indictment of Steve Bannon? Bannon was indicted for contempt of Congress. There is no quarrel with the accuracy of the charge: he publicly refused to testify to the committee investigating the January 6th insurrection, and just as publicly refused to provide documents Congress identified. If individuals can ignore Congressional subpoenas, if they can thumb their noses at lawful investigations, we are really in Wild West territory. Yet members of the GOP are warning that Democrats’ efforts to force Bannon to comply “paves the way for them to do the same if they take back the House in 2022.” According to the Washington Post report linked above, “most high-profile GOP leaders have quickly turned Bannon’s indictment into the latest litmus test for loyalty to the former president.”

This is evidently where we are: if the rule of law gets in the way of partisan loyalties, well, the rule of law must go.

What must also go in this world-view is the First Amendment of the U.S. Constitution.

Last week, Trump’s disgraced former national security advisor, former General Michael Flynn, spoke at a “Reawaken America” conference in San Antonio, Texas. (According to multiple reports, the conference was intended to reinforce the Big Lie that the 2020 election was stolen, and to support the argument that vaccine requirements infringe Americans’ liberties.) Flynn told the audience: “If we are going to have one nation under God, which we must, we have to have one religion. One nation under God, and one religion under God.”

The former national security adviser also characterized the investigation into the riot as “the insurrection crucifixion” and likened House Speaker Nancy Pelosi to Pontius Pilate. “This is a crucifixion of our First Amendment freedom to speak, freedom to peacefully assemble. It’s unbelievable,” Flynn said.

Flynn’s speech was one of the more explicit endorsements of what the Rightwing political fringe has clearly wanted–and what respect for the rule of law has impeded–a “Christian” nation. (Actually, a nation ruled by White Christian males.)

This is hardly the first time Flynn gets attention for his statements that seem to go against some of the basic tenets of American democracy. In May, Flynn said at a QAnon conference that a military coup like the one that took place in Myanmar “should happen” in the United States. Flynn was Trump’s national security adviser for less than a month and resigned after it was revealed he lied about conversations with the Russian ambassador to the United States. Flynn twice pleaded guilty to lying to the FBI and Trump pardoned him.

What I don’t get–what I cannot wrap my head around–is how non-mentally-ill Americans (even those who get their “news” from Fox) can look at these and so many other examples of the GOP assault on logic, democracy, reality and the rule of law and tell themselves that they are the behaviors of “true Americans.”

If gerrymandering delivers Congress to the GOP next year, we are going to be living in a very different country than the one in which most of us grew up.

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A Cold Civil War

Back in high school when most of us studied the Civil War (usually briefly and superficially), it was hard to get our heads around the extent to which Americans held wildly different world-views. I remember my own inability to understand how so many Southerners (and not a few Northerners) fervently believed their skin color entitled them to own another human being.

At the time of the Civil War, a majority of people willing to defend the institution of slavery lived below the Mason-Dixon Line, a geographic reality that made it possible to take up arms against those who disagreed. Today, most of the divisions we face lack that geographic clarity. Although it’s true that we have Red States and Blue States, we also have bright blue cities in those Red States, and Blue States have pockets of rural Red voters. So our current Civil War–and I don’t think that is too strong a descriptor–is a “Cold War,” being fought primarily with propaganda, but threatening to erupt into assaults like the January 6th insurrection.

Most readers of this blog are well aware of the recent speech given by former General Michael Flynn, at an event for QAnon believers that featured other representatives of LaLaLand like Texas Representative Louis Gohmert.

As the New York Times reported,

Michael T. Flynn, a former national security adviser, suggested that a military coup was needed in the United States during a Memorial Day weekend conference organized by adherents of the QAnon conspiracy theory, drawing criticism from political scientists, veterans, Democrats and a handful of prominent Republicans.

I don’t know how many of the Southerners who ultimately took up arms in America’s first Civil War actually believed in the core precepts of slavery and “the White Man’s burden,” but thanks to advances in polling and survey research, we have a fairly accurate understanding of the percentage of our fellow-Americans who claim to believe QAnon nonsense.

A recent poll by the Public Religion Research Institute and the Interfaith Youth Core found that 14 percent of Americans, including about one in four Republicans, believed in three central tenets of the QAnon conspiracy theory: that the United States is being run by a cabal of Satanist pedophiles, that “American patriots may have to resort to violence” to get rid of that cabal, and that a “storm” will soon “restore the rightful leaders.”

In a robust democracy, fourteen percent of the population can be bat-shit crazy without endangering the Union–but we don’t have a robust democracy. As over one hundred political science scholars recently wrote, the attacks on voting underway in several states are transforming democratic decision-making into “political systems that no longer meet the minimum conditions for free and fair elections.” The scholars warn that “our entire democracy is now at risk.”

Ezra Klein recently reminded readers that Democrats face an unforgiving context:

Their coalition leans young, urban and diverse, while America’s turnout patterns and electoral geography favor the old, rural and white. According to FiveThirtyEight, Republicans hold a 3.5 point advantage in the Electoral College, a 5-point advantage in the Senate and a 2-point advantage in the House. Even after winning many more votes than Republicans in 2018 and 2020, they are at a 50-50 split in the Senate, and a bare 4-seat majority in the House. Odds are that they will lose the House and possibly the Senate in 2022.

This is the fundamental asymmetry of American politics right now: To hold national power, Democrats need to win voters who are right-of-center; Republicans do not need to win voters who are left-of-center. Even worse, Republicans control the election laws and redistricting processes in 23 states, while Democrats control 15. The ongoing effort by Texas Republicans to tilt the voting laws in their favor, even as national Republicans stonewall the For The People Act and the John Lewis Voting Rights Act, is testament to the consequences of that imbalance.

This is how a Cold Civil War is conducted. Although there may be scattered bloodshed a la January 6th, the actual battles–the coups favored by crackpots like Flynn and Gohmert and numerous other Republicans– are taking place in state-level legislative bodies where the will of the majority has been neutered by gerrymandering and on media platforms where facts are twisted or sacrificed to feed the appetites–and generate the rage– of angry old White guys.

What is really terrifying is the likelihood that this current iteration of Civil War will be won or lost with most Americans totally unaware that it is even being fought….

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Here Comes The Judge

This is why ethical, competent Judges matter.

The linked article from The Washington Post is one of many similar stories we awoke to on May 12th. The “back story” –William Barr’s frontal assault on both the rule of law and the integrity of the Department of Justice by petitioning to drop the case against Michael Flynn–enraged patriotic Americans; it outraged lawyers in particular. (Lawyers and former lawyers tend to think that the rule of law matters. A lot.)

When news broke of this unprecedented and dishonest pleading, my hope was that the judge presiding over the case–who had shown no particular sympathy for Flynn–would deny it. I assumed that Barr knew such a denial was probable. However, Barr also knew that the mere fact that the DOJ had filed such a pleading would add plausibility to the President’s multiple lies about the Mueller investigation and the wacko conspiracy theory he’s calling “Obamagate.”

In other words, no matter what the judge ruled, the mere fact that Barr submitted the pleading would be a “win/win” for the forces of obfuscation, and would become part of Trump’s Big Lie about a nefarious “Obamagate” plot.

The judge outsmarted him. Bigly.

A U.S. judge put on hold the Justice Department’s move to drop charges against Michael Flynn, saying he expects independent groups and legal experts to argue against the bid to exonerate President Trump’s former national security adviser of lying to the FBI.

U.S. District Judge Emmet G. Sullivan said in an order Tuesday that he expects individuals and organizations will seek to intervene in the politically charged case. Having others weigh in could preface more aggressive steps that the federal judge in Washington could take, including — as many outside observers have called for — holding a hearing to consider what to do.

Sullivan also appointed a retired judge to argue against the DOJ’s request.

Judge Sullivan said he will set a schedule for outside parties to argue against the claims made in the Justice Department’s effort to drop the charges. Amicus briefs will be allowed from parties who believe they have interests that would be affected by the ruling, or from
parties or organizations with “unique information or perspective that can help the court.”

The nearly 2000 lawyers who formerly worked for the DOJ and recently signed a letter demanding Barr’s resignation would certainly qualify as having a “unique perspective.”

So would a group that identified itself as “Watergate Prosecutors,” who had filed a unique request a day earlier. They asked permission to file a friend-of-the-court brief addressing the need for independent scrutiny and oversight to “ensure that crucial decisions about prosecutions of high-ranking government officials are made in the public interest.”

“The integrity of prosecutorial decision making is a cornerstone of the rule of law,” they wrote. “Amici have a special interest in restoring the public trust in prosecutorial decision making and in public confidence in the viability of future independent investigations and prosecutions if the results of such work are likely to be subjected to reversal by transparent political influence.”

What is especially gratifying is that the Judge’s order not only allows these and other parties to file objections to the Justice Department’s move, but that such objections could open the door for adversarial proceedings in which arguments for and against Barr’s effort to dismiss the case would be heard.

Especially gratifying is the conclusion that such objections would also permit, if the judge chooses, requiring both sides to produce evidence and revisit the case for and against Flynn.

Instead of allowing Trump to use Barr’s pleading to confuse voters and sow even more distrust of the government he was elected to manage, the Judge’s move might allow re-litigation of the charges and re-airing of the evidence–something quite contrary to what Trump and Barr were hoping to accomplish.

As Jean-Luc Picard might say, “Make it so.”

Karma’s a bitch. I love it.

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