Recent judicial results were disappointing
E minus 113 – Our final entry before a vacation break will provide some quick updates on last week’s entry:
Quiz responses – One reader shared his responses, which were basically on target. Test your knowledge, 7/6/20, scroll down to the bottom.
Did the Supreme Court term end on June 30, as it normally does, and if not what key case remains to be decided?
The current term ended on July 9, when the final decisions on the schedule were handed down. The key decision that we had in mind was the rulings on the president’s tax returns and other financial records. Two cases were involved, one involving disclosures sought by House Democrats and the second disclosures sought by the DA for Manhattan. The House records suit was remanded for further consideration of separation of powers arguments, basically a punt that deferred any decision until after the upcoming elections.
The ruling in the New York City case was a clear-cut loss for the presidency, but given the procedural issues that remain outstanding it's considered unlikely that any documents will have to be handed over prior to the elections. While the principle that "no one is above the law" seems sound, does this result mean that future presidents may be subjected to harassing investigations while in office - not just from Congress but from state and local prosecutors as well?
Another major ruling that we definitely did not see coming was a decision that nearly half of Oklahoma remains Indian territory because Congress never got around to enacting legislation that explicitly provided otherwise. This decision doesn’t necessarily upset vested land ownership, but it will immunize members of the Indian tribes involved from state prosecutions for crimes committed in the affected area and may also create tax and regulatory issues re oil and gas activities, etc. Supreme Court ruling on Oklahoma tribal land raises questions for oil industry, Jennifer Hiller (Reuters), yahoo.com, 7/10/20.
The Oklahoma decision was 5-4, with Justice Gorsuch joining the four liberal justices in the majority. There has been a good deal of criticism, including a biting editorial in the Wall Street Journal. The tempting of Neil Gorsuch, 7/10/20.
[Chief Justice John Roberts] doesn’t put it this way [in a dissenting opinion], but it’s clear he thinks that Justice Gorsuch in McGirt has turned textualism into an idiosyncratic vanity project. The Court’s liberals are making the most of it, and good luck with the consequences, Oklahoma.
Taking into account the 2020 decisions already handed down by the Supreme Court, the latest decisions mark the completion of what strikes us as one of the discouraging SCOTUS terms on record. Our highest court never settles much of anything, it seems, at least in a constructive way.
Has the Flynn case been dismissed in accordance with the request of the Department of Justice?
No. Confirming our previous surmise, the trial judge has elected to challenge the order of a three judge panel of the DC Circuit and the order has been suspended pending an appeal for the full court to review the matter en banc. Time will tell how things go, but if the full court agrees to hear the case that could very well keep it on the burner until the election or beyond.
The Wall Street Journal issued an editorial recommending that the president pardon Flynn now rather than leaving him dangling, in large part out of concern that a liberal majority of the court might decide to review the case. Pardon Michael Flynn, 7/10/20.
By ordering Judge Sullivan to drop the charges but stopping short of removing him from the case, the panel treated the judge with far more respect than he is treating the panel’s opinion. If the Flynn case weren’t so political, there is no chance that the full court would hear an en banc appeal of a panel’s writ of mandamus ruling.
We respectfully disagree. (1) Flynn is not facing jail time at this juncture, so the need to intercede in his behalf is not immediate. (2) Unless the DC Circuit is held responsible for resolving this matter, which in our view would clearly mean dropping the case, the public and media will never accept the outcome as legitimate. (3) There is already a big stink about the just issued pardon of Roger Stone, after the president interceded to prevent a 67-year-old man from being sent to jail to serve three years for a process crime. The pushback would inevitably spill over into the Flynn case, and we don’t think the president needs to shoulder that burden right now. (4) Finally, nothing should be done that could conceivably provide ammunition to pause the Department of Justice’s completion and action on the Durham probe before the November elections.
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With that, dear readers, your faithful scribe is out of gas. Hopefully nothing truly terrible will happen between now and August 3 when these weekly essays will resume.