Bench Memos

Law & the Courts

The Woke Left’s Assault on the Rule of Law

Brett Kavanaugh is sworn in prior to testifying before the Senate Judiciary Committee, September 27, 2018. (Tom Williams/Pool via Reuters)

Ever since Donald Trump’s election, liberal judges have aligned themselves with the political “resistance,” holding this administration to a different standard from its predecessors. As I have written before, we have seen this trend from the unprecedented proliferation of nationwide injunctions in the lower courts to the political behavior of Supreme Court justices. And that is not to mention the abomination that the Left has made of the judicial nomination process.

What we have been witnessing is an all-out assault on the rule of law from the woke Left, which has elevated its political ideology to something resembling a secular religion. By this mentality, Trump and his agents are monomaniacally recast as totems of sinister forces who must be stopped at all costs. Never mind notions of fair process and democratic deliberation that made the American system of law what it is.

The newest poster child in this assault is U.S. District Judge Emmet Sullivan, who sits in the nation’s capital and presides over the Michael Flynn case. The government’s misconduct in this case was like something out of a movie, so utterly corrupt that one can hardly believe it was real.

Recall that FBI agents targeted Flynn, one of the most prominent speakers at the Republican National Convention in 2016, for investigation and did not stop even after they concluded there was no evidence he had colluded with Russia. Instead, they continued under the Logan Act of 1799, which no one has ever been convicted of violating, and which was an especially absurd pretext for someone who was the president-elect’s national-security adviser designate at the time.

The FBI then concocted a process crime. They conducted an interview with Flynn about his conversations with the Russian ambassador—despite already having recordings of those conversations—and then pressured Flynn to plead guilty to a single false-statement charge by threatening to prosecute his son and withholding exculpatory evidence. It turns out that the agents who interviewed him came away with the impression that Flynn was not lying, or at least not doing so willfully as the law requires for conviction.

A Justice Department review of the case exposed the prosecutorial abuse, and the Department moved last week to dismiss the case, admitting that the questioning of Flynn that triggered the charge “was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn.”

By longstanding principles of justice, the prosecution was over. But Judge Sullivan refused to make this easy legal call and opted instead to invite amicus briefs by third parties with no legal stake in the case. He then appointed retired judge John Gleeson to look into holding Flynn in criminal contempt for perjury. These bizarre moves followed 24 prior occasions, according to Flynn’s lawyer, in which he would not allow input from non-parties to the case. Perhaps the judge’s bias was already on display earlier in the case, when he told Flynn, “Arguably, you sold your country out,” and raised the question of whether he could be charged with treason.

In previous cases, Sullivan was known to stand up to prosecutorial abuse, a reputation he is now throwing away as he schemes up creative ways to make his court into a surrogate for the discredited prosecution. His stunts reveal him to be a lawless judge, more interested in producing and starring in his own political theater than ensuring that justice is done in his courtroom.

But the assault on the rule of law extends beyond Sullivan. We also see it as the Left continues to lose its collective mind over Bill Barr. From day one of his tenure as attorney general, which includes his service nearly 30 years ago, Barr has unrelentingly followed the law and the Constitution, which includes defending the unitary executive and religious liberty. He has been tough on crime. He is willing to weather criticism for it.

The most recent example came when he designated U.S. attorney Jeffrey Jensen—a veteran federal prosecutor and former FBI agent—to conduct the aforementioned review of the Flynn case. One would think the disclosures of prosecutorial abuse would temper the rage against the attorney general who brought accountability to his department, but the opposite happened as senior Democrats in Congress used it as an occasion to excoriate Barr.

The news media, as usual, followed suit. Chuck Todd misrepresented Barr on Meet the Press with a deceptively edited clip from an interview about the Flynn prosecution. The NBC host later apologized for it, which is more than we can expect from either elected officials or liberal judges.

Finally, the rule of law took another hit with yesterday’s hyper-politicized Fourth Circuit opinion from the en banc court allowing the emoluments suits in Maryland and the District of Columbia to continue against President Trump. The court was sharply divided along ideological lines, 9 to 6, with the majority all judges appointed by Democratic presidents plus Roger Gregory, a Bill Clinton recess appointment later nominated by George W. Bush in a bipartisan gesture.

In dissent, J. Harvie Wilkinson rightfully observed that “here the federal judiciary has sorely overstepped its proper bounds.” He summarized this latest example of contorting the law to apply a different standard to this administration:

Can we not see the political cloak we are asked to don? No federal court has ever allowed a party to sue the President under the Domestic Emoluments Clause. Until this President. No federal court has ever permitted the same with respect to the Foreign Emoluments Clause. Until this President. No federal court has used its powers in equity to remedy a standalone competitive harm, unsupported by positive law. Until this President. And no federal court has ever entertained the prospect of an injunction against a President in connection with the performance of his official duties. Until this President. Following this barrage of doctrinal firsts, would it not be fair for our fellow Americans to suspect that something other than law was afoot?

It is sad to see the woke Left turning its back on the rule of law and bedrock constitutional principles that made our country great, just because it is so desperate for power.

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