In the five days since Trump’s disastrous Tulsa rally, we have all been laughing at what an abject failure it was. Trump has been mercilessly mocked for being duped by K-Pop fans, for the pitiful 6200 people in attendance, for the unhinged, rambling speech. Buoyed by the strong showing by progressive candidates in Tuesday’s primaries, gloating over Biden’s widening lead in the polls, we feel as if victory is so close we can taste it.
Yet, while we were dining out on schadenfreude, we were reaping the bitter harvest of the toxic seeds sown by Donald Trump. Yesterday the Senate confirmed Cory Wilson, the 200th federal judge appointed by Trump (Source: “Senate confirms Trump’s 200th judicial nominee,” by Devan Cole and Ted Barrett, CNN.com, 6/24/20). Wilson will serve on the Fifth Circuit, the appellate court with jurisdiction over Louisiana, Texas and Mississippi, home to 9 million Black and Latinx Americans. Wilson is a 50 year old Mississippi lawyer and former state representative, who once called for the “complete and immediate reversal of Roe v. Wade.”
If we harbor any doubt that Trump’s judicial appointees are all ultra conservative ideologues in the mold of Wilson, we need look no further than the execrable majority opinion written by D.C Circuit Judge Neomi Rao for the three judge panel yesterday in In re: Michael T. Flynn Emergency Petition for a Writ of Mandamus, USCA No. 20-5143 (6/24/20). Rao ordered District Court Judge Emmet Sullivan to dismiss the charges against Flynn without a hearing to determine the reasons for the Department of Justice’s about face, (Source: “Federal appeals court orders Flynn judge to dismiss charges,” by Josh Gerstein and Kyle Cheney, Politico.com, 6/24/20).
With apologies to non-lawyers, it is important to understand just how radical this decision was. Writs of mandamus are extreme and rare remedies designed to compel government officials to perform their duties or to correct abuses of discretion (Source: Legal Information Institute, law.cornell.edu). They are issued when the party has no other remedy, hardly the case when Judge Sullivan had yet to hold a hearing. Rao ignored any notion of prosecutorial accountability, laughably claiming that allowing Judge Sullivan to probe the reasoning behind the DOJ’s decision to drop charges against someone who pled guilty twice would “result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power.” (In re: Michael T. Flynn at p.8).
Legal commentators uniformly condemned the opinion as the worst sort of sophistry, a cynical, result-oriented decision that “broke from the usual standards of judicial process and self-restraint,” (Source: “The Deeply Concerning and Misguided D.C.Circuit Mandamus Ruling in the Flynn Case,” by Marty Lederman, justsecurity.org, 6/24/20).
The 200 arsonists prepared to torch the Rule of Law in order to keep power in the hands of a white supremacist minority will remain on the bench long after Trump has been run out of D.C. on a rail. Before we take a victory lap, we’d better have a strategy to deal with that.