Thursday, November 26, 2020

Turkey Week: A Supreme Mistake

The New unimproved Supreme Court, now with Amy Coney Barrett, has enough votes to allow American democracy to become American theocracy.
 
The Supreme Court late Wednesday night barred restrictions on religious services in New York that Gov. Andrew M. Cuomo had imposed to combat the coronavirus.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and the court’s three liberal members in dissent. The order was the first in which the court’s newest member, Justice Amy Coney Barrett, played a decisive role.

The court’s ruling was at odds with earlier ones concerning churches in California and Nevada. In those cases, decided in May and July, the court allowed the states’ governors to restrict attendance at religious services.

The Supreme Court’s membership has changed since then, with Justice Barrett succeeding Justice Ruth Bader Ginsburg, who died in September. The vote in the earlier cases was also 5 to 4, but in the opposite direction, with Chief Justice Roberts joining Justice Ginsburg and the other three members of what was then the court’s four-member liberal wing.

In an unsigned opinion, the majority said Mr. Cuomo’s restrictions violated the First Amendment’s protection of the free exercise of religion.

In a concurring opinion, Justice Neil M. Gorsuch said Mr. Cuomo had treated secular activities more favorably than religious ones.

“It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques,” Justice Gorsuch wrote.

The court’s order addressed two applications: one filed by the Roman Catholic Diocese of Brooklyn, the other by two synagogues, an Orthodox Jewish organization and two individuals. The applications both said Mr. Cuomo’s restrictions violated constitutional protections for the free exercise of religion, and the one from the synagogues added that Mr. Cuomo had “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic.”

The restrictions are strict. In shifting “red zones,” where the coronavirus risk is highest, no more than 10 people may attend religious services. In slightly less dangerous “orange zones,” which are also fluid, attendance is capped at 25. This applies even to churches that can seat more than 1,000 people.
 
And because churches can seat more than 25 people, numerical restrictions that treat secular and religious gatherings as the same violate the First Amendment. I know Coronavirus differentiates between churches and liquor stores, didn't you, citizen? Surely you are misinformed as to America, the new Land of God.
 
That's where we are now for the next decade or so.
 
Expect to see a lot more of the sentence "The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and the court’s three liberal members in dissent." for years and years to come if Democrats can't get control of the US Senate again.

Turkey Week: Pardon This Turkey

As widely expected, Trump is now going to pull the trigger on a deluge of Mueller probe pardons on the way out the door, starting with Michael Flynn.

President Donald Trump announced on Wednesday that he has "granted a Full Pardon" to former national security adviser Michael Flynn. 
"It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon. Congratulations to @GenFlynn and his wonderful family, I know you will now have a truly fantastic Thanksgiving!" Trump tweeted
Flynn, who was Trump's first national security adviser, pleaded guilty twice to lying to the FBI during its investigation of Russian interference in the 2016 presidential campaign about his conversations with then-Russian Ambassador Sergey Kislyak during the presidential transition. Trump said in March that he was "strongly considering" pardoning Flynn and had told aides in recent days that he planned to pardon him before leaving office. 
While the President has continued to falsely insist publicly that he won the presidential election rather than Joe Biden, the pardon of Flynn is a sign Trump understands his time in office is coming to a close. He's expected to issue a string of additional pardons before leaving the White House, according to multiple sources familiar with the discussion.

Flynn's tenure at the White House lasted only a few weeks and he resigned after being caught lying about his Russian contacts. At the time, Trump tweeted that he fired Flynn because he had lied to Vice President Mike Pence. Sources familiar with what happened also said Flynn lied to Reince Priebus and Sean Spicer, two top Trump officials at the time.

Flynn pleaded guilty in late 2017 to lying to the FBI about those contacts, but later disavowed his plea and tried to get the case thrown out. In a shocking twist this spring, the Justice Department abandoned the case, which is still tied up in legal limbo.

But it's that "more pardons are coming" part that's the fun stuff.

Behind the scenes: Sources with direct knowledge of the discussions said Flynn will be part of a series of pardons that Trump issues between now and when he leaves office.

The big picture: Flynn's pardon would be the culmination of a four-year political and legal saga that began with the FBI's investigation into possible coordination between the Trump campaign and the Russian government in the 2016 election. The retired lieutenant general is viewed by many Trump supporters as a victim of political retaliation by the Obama administration. Flynn's lawyers and members of conservative media have accused the FBI of entrapping him and cited his case as part of a broader campaign to discredit the Russia probe. Earlier this year, Trump commuted the sentence of Roger Stone, another associate charged in the Mueller investigation who the president complained had been unfairly targeted in a political witch hunt.

The backdrop: Flynn's legal troubles began during the 2016 presidential transition, when he urged former Russian Ambassador Sergey Kislyak in a phone call not to escalate in response to the Obama administration imposing sanctions on Russia for election interference. Flynn then lied about not discussing sanctions, to Vice President Mike Pence who repeated that denial to the media — causing alarm among Justice Department officials who feared the lies made Flynn susceptible to Russian blackmail. In January 2017, Flynn was interviewed without a lawyer present by FBI agents as part of a counterintelligence investigation into Russian interference. He later admitted to lying to the FBI as part of a plea deal with special counsel Robert Mueller.

Flash forward: In January 2020, after two years of sentencing delays due to his cooperation with the Mueller investigation, Flynn and his new legal team sought to withdraw his guilty plea, alleging prosecutorial misconduct. A federal prosecutor appointed to review the case by Attorney General Bill Barr recommended that the charges be dropped, finding that the FBI interview in which Flynn lied was "conducted without any legitimate investigative basis." 
District Judge Emmet Sullivan did not immediately agree to drop the charges, and asked for outside legal experts to weigh in on the unusual case. Flynn's lawyers filed an emergency appeal to force the judge to comply with the DOJ motion. That resulted in a protracted legal fight, which ended in August with an appeals court siding with Sullivan.
 
Happy Turkey Day, and remember, the Trump campaign took help from Russia to win in 2016. Flynn lied about it to the FBI and went to prison and admitted to spying for Turkey twice. He's now getting his name cleared, and a whole lot more people are going to follow.

And while Michael Flynn will get to enjoy his Thanksgiving as a free man, he should expect to keep his lawyers on retainer through next year because I guarantee you that, because the second Flynn accepts this pardon, he forfeits his 5th Amendment right to avoid self-incrimination and he's fair game for both Tisha James and Cyrus Vance and their respective Trump Organization fraud cases.

Enjoy the subponas, Turkey turkey.