Wednesday, May 20, 2020

More on the Michael Flynn case.

This time I have a debate with the USA Today editorial board.  Here is their piece.  And here is a link to mine, which starts this way:
Chief Justice John Roberts said judges, like umpires, are there “to call balls and strikes and not to pitch or bat.” The Justice Department and Michael Flynn agree that their contest is over, so Judge Emmet Sullivan should not force the parties to keep playing.
And the conclusion:
In our system, each side is responsible for its own case. Judges ensure that government treats the defendant fairly. They have no interest in forcing prosecutors to prosecute. The parties have resolved their dispute, so there is nothing left to judge. As Justice Roberts put it, “Nobody ever went to a ball game to see the umpire.”


Anonymous said...

If you think umpires are neutral, you don't watch a lot of baseball. Every ump has a different strike zone.

My first and only exhibit is the Marlins playoff game that Livian "I love you Miami" Hernandez pitched and Gregg umped.

Anonymous said...

Everyone knows Roberts' umpire analogy is a laugh. You have to give him credit, however, because he used the analogy to convince people he is a neutral arbiter and not the conservative warrior he is.

Look how "fair" he's been at the recent telephone arguments. "There were striking disparities evident from the telephonic arguments. One disparity is the justices who had the longest and shortest questioning periods. The three longest questioning periods were all by male justices, and all by conservative justices—two from Justice Samuel Alito and one from Justice Neil Gorsuch.

The three shortest questioning periods that were ended by the chief justice (rather than by the questioning justice concluding their inquiry) were all by female justices—two from Justice Ruth Bader Ginsburg and one from Justice Elena Kagan.

Then there were the interruptions. The chief justice had to end most of the individual questioning periods rather than wait for the questioning justices to conclude them in a timely way. Over the 10 arguments, the chief justice ended 158 total questioning periods. Most of the time he did so by interrupting an advocate or saying “thank you” after an advocate paused or concluded their remarks.
But occasionally he interrupted one of his colleagues, either as they were asking or beginning to ask a question or before an advocate had to respond to their question.

Of the 11 times the chief justice interrupted a colleague, all 11 interruptions were of his more liberal colleagues. And nine of these interruptions were of women.

These interruptions were not more common because the liberal justices just happened to be more long-winded. Again, the three longest total questioning periods were all by male, conservative justices—one by Alito and two by Justice Brett Kavanaugh.
While liberal justices had six of the 13 longest total questioning periods in a given argument, their total questioning times were far shorter than that of their more conservative colleagues. Alito’s longest questioning time was nearly a minute longer than the longest total questioning time that a liberal justice received (Justice Sonia Sotomayor in Mazars) and nearly a minute and a half longer than the second-longest questioning time that a liberal justice received (Kagan in Our Lady). Kavanaugh’s longest questioning times were over a minute longer than Kagan’s longest questioning time, and 30 seconds longer than Sotomayor’s."

But maybe he's right, he's just an umpire. Like Gregg, who gave Livian strikes that were a foot off the plate.

Anonymous said...

I could tell that was copied and pasted from Slate even before I went to Slate and confirmed in about 30 seconds. And it's actually better than the usual bilge from Dahlia Lithwick and Mark Joseph Stern.

Anonymous said...

The chief gave kavanaugh 30 seconds more than Sotomayor?

What an outrage!

But he did give plenty of time to thomas, so im glad we got to hear more from the only person of color!

Anonymous said...

Roberts is a conservative warrior? Never mind that he was the deciding vote and author of the opinion that upheld Obamacare, in which he was joined by Kagan, Ginsburg, Sotomayor, and Bryor, in one of the most politicized legal debates since Bush v Gore. But you know, his ability as a time keeper is obviously what's important to some people.

Anonymous said...

Judges do call balls or strikes...and the rule that is being applied specifically assigns discretion to the court. That judge has a duty to use his discretion as he sees fit. Shame on people who are trying to make this into a partisan issue and play into trumps messaging. Why don't you wait for the court to make a decision and explain it in an order before you accuse him of violating the law?

Anonymous said...

Let's start with the ballot box.

Shelby County v. Holder
League of Latin Am. Citizens v. Perry
Bartlett v. Strickland,
Husted v. A. Philip Randolph Inst.
Abbott v. Perez
Harris v. Quinn
Janus v. AFSCME

Anonymous said...


Perhaps some judges call balls and strikes, but not sullivan here.

1. Sullivan is a democratically appointed judge presiding over a republican official.

2. The competing media narratives were/are: democrats/msnbc say the trumpers were russian assets and flynn was a traitor, while Republicans/fox say flynn was set up as part of the russia hoax.

3. During flynns first sentencing, sullivan rejected a joint recommendation of probation, and accused flynn of being a traitor, and im sure you are aware treason is punishable by death. The gratuitous comment closely alligned with the msnbc narrative at the time. Sullivan knew at the time anything he said would be national and international news, and his comment predictably did so. Coming from a "federal judge", Sullivan therefore gave weight to the democratic/msnbc media narrative.

4. As you know, the democratic/msnbc narrative that the trumpers were russian assets was false. Nevertheless the false narrative, bolstered by sullivan, provided a basis to malign the trump administration for 3 years, stifle their agenda, and arguably helped the Democrats take back the house.

5. Newly discovered brady evidence has been turned over. It was required to be turned over years ago, by court order. We dont know if it was intentionally suppressed, or a result of negligence. It shows that high level fbi officials (incliding mccabe whose wife is a democrat) prevented the case from being closed, after line agents already concluded there was no basis for further investigation. We also now know that the white house was involved, which is unusual.

6. Sullivan has a long history of supposedly being tough on prosecutors who commit misconduct, but hasnt said a word or issued an order to show cause why the prior line prosecutor should not be held in contempt for violation of a court order.

7. Barr moved to dismiss the case. Barr points to evidence consistent with the republican/fox media narrative that flynn was set up.

8. The Republicans/fox think the case should be dismissed, while the democrats/msnbc think the case should not be dismissed.

9. Sullian recently read an op-ed in a democratically aligned newspaper, authored by a former federal judge ( appointed of course by a Democrat). The op-ed suggests that sullivan should refuse to dismiss the case, and accuses barr of misconduct. The op-ed ignores the issue of brady violations.

10. Sullivan had previously rejected over a dozen requests of amici to intervene to file briefs, many of them sympathetic to flynn, explaining that would be improper.

11. Sullivan on his own accord invited the author of the op-ed to file an amicus brief.

12. Although amici are typically neutral and are supposed to aid the court on the interpretation of the law, sullivan was careful on amici's role. He wasnt instructed to take any position on whether the case should be dismissed, amici was specifically instructed to oppose the motion to dismiss.

12. Sullivan also gratuitously added an issue to be addressed: whether flynn should be held in criminal contempt. Sullivan did not ask amici to opine on whether the line prosecutor should be held in contempt for violation of a court order. He also seems not to even care why brady disclosures are being made years after the fact.

13. Suggesting a criminal defendant should be held in contempt for seeking to withdraw a plea after brady violations by the prosecution are later discovered is highly irregular. There is no other case that I know where Sullivan has previously contemplated criminal contempt in that circumstance.

This history is clear. Sullivan has acted and continued to act is a baised way, tailoring his actions to the media. He clearly intends to create a circus, and use his position to publicly criticize barr. He wants to be a part of the new msnbc narrative.

So when you say "why dont you wait", i dont think that would be appropriate here. When you say shame on those who are trying to make this partisan, you ignore that sullivan has been partisan.

Anonymous said...

1) So now only democrats can oreside over democrats? Whites over white? Black over black? Dummy.

2) So what?

3) Flynn tried to orchastrate the kidnapping of an American resident for Turkey - against US policy. What does that make him? Let alone side up to a country interfering in our elections? Read the USSG about relevant conduct. Dumbass.

4) Yes, there is a difference between being an agent an an asset. You need to go understand them and then comment. As assets, some of trumps circle were clearly helping Russia fuck with our democracy.

5) yeah, I really don't like the Brady violation either, but the guy did plead guilty to lying. Twice. He shouldn't be complaining now that he is innocent-because he is not.

6) You need to go back and learn what misconduct means. Tanking a case for political reasons also falls into that category. Turd.

7, 8) See 6 and go have a drink with Barr. He is the paradigm of virtue-not.

9) Really, he was swung by an op-ed? Really? So everything Barr does is because of Fox? Stupid is as stupid does (or writes).

10-12, 12) So? Maybe he wants to actually understand the law and issues since DOJ has abdicated its obligation to advocate on behalf of the people?

13) Kind of agree with you (you still suck), I am interested to see where this goes.

I am not a fan of MSNBC either, I think they are stooping to the level of Fox News. But I don't think it is fair to accuse the judge of improprieties for trying to do his job. If this was some white racist judge tanking a kkk prosecution, your outrage would be understandable....instead you sound like a whiny child pissed off that your cousin called out uno. Get over the outrage and see how it plays out. Fuckwad.

Anonymous said...

Man, you are one angry asshole.

Anonymous said...

If having a major dislike for trump and his apologists/enablers (even of the anonymous variety) makes me an asshole. Guilty...but I am not overly angry.

I laugh at people like you, as do most mildly educated people I know who comment about people like you...your forced stupidity and willful disregard of all things decent is like watching Faust enjoy his end of the bargain.

Enjoy it while it lasts, but don't get annoyed when you are called out on it.

Anonymous said...

Part 1: "Dummy" "dumbass" "turd" "fuckwad"

Part 2: complains of "willful disregard of all things decent"

Anonymous said...

You have no sense of humor, but you post did make me laugh.

Anonymous said...

744 lol good one