Film & TV

Are Any Movies Really ‘Coming Soon to a Theater near You’?

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A man cycles past a closed movie theater in Times Square following the coronavirus outbreak in New York City, March 17, 2020. (Carlo Allegri/Reuters)

Rarely has a trailer’s most common tagline — “coming to theaters” — represented such a mix of defiance and hope. A new trailer for Christopher Nolan’s new film Tenet debuted this morning, what looks like a mind-trippy action thriller of time-traveling spies. (Former CIA director George Tenet does not appear to be one of them.)

Right now, Tenet is the one major summer blockbusters that has not been pushed back to autumn or made plans to go to a streaming service. Right now, Disney’s live-action Mulan is scheduled for July 24, and the Wonder Woman sequel moved back from June to August. The new Tenet trailer declares it is “coming to theaters,” but doesn’t mention the current July 17 release date. As many have observed, movie theaters as an industry certainly won’t survive this pandemic intact, and many theaters may not survive at all.  Sitting for two hours in a ventilated, air-conditioned room with lots of other strangers who are eating popcorn is probably one of the riskier actions you can take during a pandemic of a contagious virus.

At its best, going to the movies is a magical experience — two hours where your attention and mind are taken to another world and you feel like you’re witnessing, or maybe even living, part of someone else’s life, sharing their thrills, chills, sorrows and laughs. When it goes right, each little step adds to the enjoyment — the anticipation, your favorite candy or snacks, the trailers, the lights going down and the music swelling. Sure, watching films at home can be enjoyable, but plenty of movies are enjoyed as a group experience — the same with live performances, concerts, and sporting events. We like hearing a crowd react the same way we are, with laughter, cheers, screams, or sniffles. Someone argued a few years ago that the big blockbusters — the Harry Potters, Marvel superheroes, and Star Wars movies — are one of the few really widespread shared experiences in our increasingly diverse country.

At its worst, your feet stick to the floor, the other patrons won’t be quiet, the concessions are ludicrously overpriced, and you wonder how anyone involved in making the movie you’re watching could have ever thought this movie was a good idea. Still, even the grumpiest among us would rather have that option than see it disappear or grow rare, a casualty of the widespread shift to streaming services and fear of assembling in crowds. If the virus is defeated within a year, theaters would probably eventually come back in some form or another. But we will miss them while they’re gone.

Education

D.C. Panel Urges No Full-Time, In-Person School Until There’s a Vaccine

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A school bus used for transporting New York City public school students is seen parked in front of a school in the Queens borough of New York January 15, 2013. (Shannon Stapleton/Reuters)

The theme of today’s Morning Jolt is that our response and reopening programs are designed for obedient, easily programmed robots, not human beings, and that the group of Americans who are bearing one of the toughest burdens of our failures in leadership are our children.

Shortly after sending the newsletter, I saw this story:

Students in the nation’s capital should not return to full, in-person learning until there is a reliable vaccine or cure for the novel coronavirus, according to recommendations released Thursday by a group of advisers appointed by D.C. Mayor Muriel E. Bowser.

. . . before that, students should return to campuses on modified schedules, switching between in-person and distance learning depending on the day. Even if schools can accommodate them, families should not be required to send their children to school buildings — and will have the option of distance learning — if they feel unsafe.

The D.C. plan calls for no more than 10 students in a classroom in Phase Two, along with staggered arrival and dismissal times, and no cafeterias. (The city hopes to start Phase One at the end of next week.) Other potential plans include having students attend school one or two days a week and participating in remote learning on the others, or having kids attend school one week out of every three weeks.

Public schools will need a plan for something much better and closer to “normal” before a vaccine arrives. (The one caveat is the report that Oxford scientists are hopeful their vaccine will work and be widely available by September, which would be near-miraculous.)

Our ability to treat the disease keeps improving, and there are some promising signs on the vaccine front. Eight vaccines are in human trials, the Oxford effort is expanding to a trial of 10,000 people, and Dr. Anthony Fauci says he’s “cautiously optimistic” about the early results from the Moderna trial:

Even though there was only eight individuals, we saw neutralizing antibodies, at a reasonable dose of the vaccine and the titers [the measure of antibodies in the blood] were high enough to get us to believe that if we attained that in a large number of people, you could predict that that vaccine would be protective. So although the numbers were limited, it was really quite good news, because it reached and went over an important hurdle in the development of vaccines.

But a reliable vaccine may not be ready until the end of the year, or early 2021, or the middle of 2021 . . . or ever. And even if one is developed, it will take considerable time to manufacture and distribute it throughout the population.

As mentioned in today’s newsletter, distance learning is probably working okay for some kids, not so great for others, and it is disastrous for the kids who need the most help. And the D.C. plan amounts to continuing distance learning . . .  indefinitely.

Politics & Policy

Planned Parenthood Knew It Was Ineligible for Coronavirus-Relief Loans before Claiming Them

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(Lucas Jackson/Reuters)

Yesterday morning, I reported that two dozen Republican senators, including Senate majority leader Mitch McConnell (R., Ky.), are calling on the Department of Justice to investigate Planned Parenthood for fraud, after 37 of the organization’s affiliates claimed $80 million in small-business loans for which they were ineligible. The loans came from the Paycheck Protection Program, created by Congress in the CARES Act, to help small businesses meet payroll and pay rent during COVID-19 shutdowns.

Despite the fact that mainstream news organizations have entirely ignored this story, Planned Parenthood apparently felt the need to defend itself, because the organization tweeted yesterday morning: “Some independent Planned Parenthood organizations applied for and were awarded loans subject to eligibility rules established by Congress and the Small Business Administration (SBA), which they met.”

This is false for several reasons, not least of which is that Planned Parenthood itself has already openly admitted its lack of eligibility for the loans. After the CARES Act passed, Planned Parenthood Action Fund (the group’s political-action arm) issued a statement condemning the legislation for excluding the organization from its funding: “The bill gives the Small Business Administration broad discretion to exclude Planned Parenthood affiliates and other non-profits serving people with low incomes and deny them benefits under the new small business loan program.”

Planned Parenthood would have us believe both that Congress should be condemned for excluding the group from funding and that Planned Parenthood’s affiliates were in fact eligible for that funding when they later applied for and received it.

In fact, there is no gray area on this question: The text of the CARES Act makes it exceptionally clear that nonprofit organizations such as Planned Parenthood are not eligible for loans under the PPP, and that fact was highly publicized at the time of the bill’s passage. The part of the bill outlining eligibility for the loans was a particular point of contention during congressional debate precisely because the final wording would determine whether the abortion provider would be able to claim federal funding.

Republicans won that fight, as illustrated by the bill text, reporting at the time, and subsequent clarifying statements from Trump-administration officials. Section 1102 of the CARES Act states that nonprofits are eligible for PPP loans only if they and their affiliates have no more than 500 employees. Planned Parenthood has about 16,000 employees, a whopping 32 times as many as the maximum-employee cap outlined in the bill.

There is no argument to be made that the bill actually allows groups with Planned Parenthood’s governing structure to receive small-business loans. And, given the organization’s own open opposition to the CARES Act, there is no argument to be made that the group was unaware of its affiliates’ ineligibility for the program.

Sports

Sports Talk, Other Talk

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Coach Jim Harbaugh of the Michigan Wolverines during a game against the Indiana Hoosiers at Memorial Stadium in Bloomington, Ind., November 23, 2019 (Marc Lebryk / USA TODAY Sports)

My Impromptus today begins with Michael Jordan, who has seized attention in recent weeks: That’s because of a documentary called “The Last Dance,” which is about the 1990s Chicago Bulls. Jordan and the Bulls are a pleasant subject, even for a lifelong Detroit Pistons fan like me.

I have unpleasant subjects too — including QAnon, which is having an impact in the Republican Party; and a particular accusation by President Trump. Over and over, the president suggests that Joe Scarborough, the morning-show host, killed a woman named Lori Klausutis.

You want to avert your gaze from these subjects, or at least I do. Far more comfortable to criticize the mainstream media or the Democratic Party at large. I have practically made a living at this. But we on the right have some spectacular ugliness to deal with.

It was very pleasant to talk with Jim Harbaugh, the longtime NFL quarterback who is now the coach of the University of Michigan football team. He is an old friend of mine. We did a podcast last month — here — and “continued the conversation” yesterday, here.

The subjects? Well, The Last Dance, for one. And various issues in football. And a little baseball (too slow?). And a little soccer (you like?). And so on. With sports at a standstill, sports talk seems more essential than ever, to many.

Economy & Business

Testing the Waters

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Earlier this week, the Treasury Department sold 20-year Treasury Bonds for the first time since 1986! Why does this matter? My guess? They were testing the appetite for longer-duration bonds (they sold $20 billion worth at 1.22 percent). $20 billion is chump change in the grand scheme of federal-government debt issuance. But the point is that there is significant appetite at very low yields for long-duration government debt, and it makes no sense for our Treasury to not test the waters of 50-year or 100-year maturities, taking off the table one of the biggest tail risks people have suggested over the years: rising rates (in the future) substantially increasing debt-service costs.

This could be good news for investors, too. A long-duration U.S. government asset could be a substantial deflation hedge.

Win, win, therefore.

U.S.

Suicide Prevention Researchers Leave Out Assisted Suicide

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(Unsplash)

It almost never fails. A learned article in a medical or bioethics journal laments our suicide crisis and urges greater efforts at prevention. And yet somehow, the authors never once mention the elephant in the room: i.e., the impact of ubiquitous suicide promotion by “death with dignity” activists, boosted by media commentators, in popular culture features, and as furthered by politicians.

It just happened again. An article published in the AMA’s JAMA Psychiatry: promises to “flatten the curve” of our rising suicide numbers, but doesn’t once mention assisted suicide as a contributor to the problem:

To drive this research agenda, we are acting on research that indicates suicide prevention efforts in health care settings have the potential to significantly reduce suicide rates. Nearly 30% of decedents had a health care visit in the 7 days before suicide; half were seen in health care settings within the preceding 30 days; and around 90% had visits in the year before death. Second, applying universal screening in the emergency care setting could double the number of individuals identified within usual care.

Similarly, the application of risk prediction algorithms to electronic health records can enhance prediction of suicide attempts and deaths, particularly when the data are enriched with screening information. Third, there is a growing suite of effective interventions and care practices that include medications and psychotherapies, a brief safety plan intervention, and follow-up efforts at high-risk, critical points of care transition such as “caring communication” contacts, and telephone calls to encourage ongoing social connection and care engagement. These practices can improve function and reduce the frequency of suicide attempts between 30% to 50% over the following year. The NAASP recommends that these practices be combined in a system of care and that health care organizations strive for this “Zero Suicide” approach.

I’m all for it. But pretending assisted-suicide deaths are not “suicide,” as most laws require, doesn’t make them not suicide, and merely sweeps that aspect of our crisis under the rug.

Active suicide promotion for the ill and disabled is something new in our history. Unless suicide-prevention researchers include the impact of such advocacy in their studies, assess the consequences of the “some-suicides-are-good” message communicated by laws legalizing doctor-prescribed death, and explore the shameful failure of doctors and hospice professionals to call in prevention services when someone asks for help in dying where assisted suicide is legal, this will be for naught.

To paraphrase Lincoln, we can’t be half suicide prevention and half suicide promotion. Sooner or later, we will be all one or the other.

Education

Some Good Higher Ed News for a Change

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In many if not all conservative states, you find that the universities are run by people who are cut from “progressive” cloth even though the government is dominated by Republicans. Usually, the leftist administrators get their way, blowing through money as if they were in California. Few of the politicians have the backbone for a fight with them.

But there’s at least one cheerful counter-example: Idaho. As Boise State professor Scott Yenor explains in today’s Martin Center article, the leftists provoked a fight recently when they wanted more spending (especially for “diversity”) and the politicians wanted frugality.

The battle over the budget began last year. Yenor writes:

In June 2019, for instance, Boise State University (BSU) interim president Martin Schimpf sent a letter to Boise State faculty and staff boasting of BSU’s accomplishments in promoting diversity and inclusion. He promised more to come, including scholarships for DACA students (illegal under Idaho law), graduate fellowships designed for “underrepresented minority students” (which BSU then did), and the hiring of a chief diversity officer (which BSU also pursued).

That aroused opposition in state government. One representative took the lead in declaring that diversity programs are divisive and merely drive up the cost of education.

A budget fight ensued, which the defiant educrats lost.  Yenor states:

The final budget contained a provision requiring universities to undertake “budget reduction” and “cost containment.” The legislature wants schools to prioritize reducing “administrative overhead” and to eliminate spending that is “not integral to each institution’s core instructional mission.”

Idaho leftists wanted to transform the state through their control of the public universities. For now, at least, their plans have been defeated.

Professor Yenor concludes,

Budget cuts will be coming to public higher education. They can leave higher education better than it was before — if state legislatures are vigilant in requiring public universities to prioritize the public good. Cutting budgets is not enough, and neither are reporting requirements. Only state legislatures alert to the possibilities of reform can ensure that cuts serve the priorities of the public.

Politics & Policy

Pelosi Goes Low on Fat

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Speaker of the House Nancy Pelosi said earlier this week that President Trump is “morbidly obese.” Madeleine Kearns discusses the resulting controversy on NRO. I think she’s ignoring two key points. First, Pelosi is wrong. “Morbid” obesity is not defined by the CDC, as Kearns notes, but when it is used in the literature (e.g., here) it tends to be associated with a body mass index well in excess of anything plausibly attributed to Trump.

Second, Pelosi’s intent was obviously to ridicule the president for his girth — and not, for example, “to state the facts” (which, again, she didn’t do). It was malicious, just as similar comments from Trump have been.

I can’t believe that Kearns wishes to defend making fun of people for their weight as a means of maintaining the “certain amount of stigma” about obesity that she considers healthful. Whether or not she does, I don’t think that stigma is in any danger of shrinking away to nothing.

Politics & Policy

Exclusive: Rep. Hartzler Introduces Bill to Offer Nonprofits Liability Protection during Reopening

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Congresswoman Vicky Hartzler (R., Mo.) speaks at the Values Voter Summit in Washington, DC., October 7, 2011. (Gage Skidmore)

Congresswoman Vicky Hartzler (R., Mo.), who represents Missouri’s fourth congressional district, has introduced a piece of legislation to extend liability protections to nonprofits as states begin to lift their stay-at-home and shutdown orders across the country.

“I think it’s very important for our churches and nonprofit organizations to have assurance as they reopen that they will be able to continue to provide services to the needy with confidence,” Hartzler said of her legislation in an interview with National Review. “There’s a concern that some individuals may try to cherry-pick certain guidelines or other provisions and sue these organizations, and they are at the forefront of providing the services that communities need, whether it be food pantries or handing out clothes or working in homeless shelters, and certainly holding churches services.”

The bill, known as the “Service Assurance Act,” provides that “a nonprofit organization shall not be liable under Federal or State law for any act or omission of the organization with respect to any harm arising from exposure to, or infection by, the virus that causes COVID–19 during a public health emergency with respect to COVID–19.”

Hartzler’s legislation also provides that nonprofits will not be free of liability if the “harm was caused by an act or omission constituting willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed.”

The bill establishes that the liability protection it provides would supersede state laws that are inconsistent with its provisions, unless they provide greater protection from liability. Hartzler says she already has the support of a few cosponsors and is hopeful there will be bipartisan backing for the proposal.

“We want to reopen America,” she said. “We want to do it safely, but we also want to make sure that our businesses, or in this case our churches and our charities, are able to do that soon. Churches are vital to the spiritual health of this country and worthy of protecting from lawsuits.”

Hartzler says she has spoken with House minority leader Kevin McCarthy (R., Calif.) about having the language of her legislation included in the next round of CARES Act legislation and notes that Senate majority leader Mitch McConnell (R., Ky.) also has expressed support for liability protections.

McCarthy and McConnell recently released a joint statement on the GOP priorities for the next phase of CARES Act legislation, stating that “healthcare workers, small businesses, and other Americans on the front lines of this fight must receive strong protections from frivolous lawsuits.”

“We cannot let a second pandemic of opportunistic litigation enrich trial lawyers at the expense of Main Street and medical professionals,” they said. “Senate and House Republicans agree these protections will be absolutely essential to future discussions surrounding recovery legislation.”

Economy & Business

BlackRock and ESG

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BlackRock CEO Larry Fink takes part in the Yahoo Finance All Markets Summit in New York in 2017. (Lucas Jackson/Reuters)

Say what you will about BlackRock’s Larry Fink, Wall Street’s most prominent player of the climate game, but he knows a thing or two about politics.

Bloomberg reports:

When the Federal Reserve needed Wall Street’s help with its pandemic rescue mission, it went straight to Larry Fink. The BlackRock Inc. co-founder, chairman, and chief executive officer has become one of the industry’s most important government whisperers. In contrast to other influential financiers who’ve built on ties to President Trump, Fink possesses a power that’s more technocratic. BlackRock, the world’s largest money manager, can do the things governments need right now.

The company’s new assignment is a much bigger version of one it took on after the 2008 financial crisis, when the Federal Reserve enlisted it to dispose of toxic mortgage securities from Bear Stearns & Co. and American International Group Inc. This time it will help the Fed prop up the entire corporate bond market by purchasing, on the central bank’s behalf, what could become a $750 billion portfolio of debt….

Fink was on the shortlist in 2012 to replace outgoing Treasury Secretary Tim Geithner. Now he’s widely viewed as a contender for that post in a possible Joe Biden administration….

[T]he money manager [has] built a powerful advocacy arm. Its sphere of influence reaches beyond the central bank to lawmakers, presidents, and government agency heads from both political parties, though its hiring leans Democratic. Bloomberg found only a handful of current BlackRock executives who came out of the George W. Bush administration, but more than a dozen Barack Obama alumni. These include Obama’s national security adviser, senior adviser for climate policy, the former Federal Reserve vice chairman he appointed, and numerous White House, Treasury, and Fed economists.

Meanwhile . . .

Already there are growing worries about the power of BlackRock, Vanguard Group Inc., and State Street, often called the Big Three because they hold about 80% of all indexed money. That raises concerns about how they wield their voting power as shareholders and has even drawn attention from antitrust officials.

And with BlackRock positioning itself as the enforcer of climate orthodoxy, the way it casts its votes is coming into increasingly sharp focus, both from the climate warriors and those who worry quite where shareholder return ranks among BlackRock’s priorities.

Writing for RealClearMarkets, Bernard Sharfman:

As a means to implement its new form of shareholder empowerment, BlackRock will be  requiring each public company that it invests in—virtually all public companies—to disclose data on “how each company serves its full set of stakeholders.” Moreover, noncompliance will not be tolerated. According to Fink, “we will be increasingly disposed to vote against management and board directors when companies are not making sufficient progress on sustainability-related disclosures and the business practices and plans underlying them.” This threat appears to be playing out in reality. During the first quarter of 2020, BlackRock was reported to have voted against one or more board recommendations at more than 30% of the 333 shareholder meetings it attended in North America, including approximately 120 board-nominated directors.

This approach is deficient on three counts. First, as I discussed in my recent op-ed BlackRock, Larry Fink, and a New Form of Shareholder Empowerment, BlackRock is extremely resource-constrained even to attempt getting involved in such an undertaking on a per-company basis. It will be Larry Fink and his approximately 20-member U.S. based investor stewardship team dictating required disclosures, business practices, and underlying strategies for the thousands of public companies that exist in the United States.

Second, the BlackRock desire for an increased management role in our public companies must be based on an assumption that public companies as a whole are not paying enough attention to stakeholder relationships in order to maximize the long-term returns of shareholders. This is definitely a flawed starting point. Efficiently and innovatively dealing with these critical relationships is what the work of corporate management is all about. Moreover, these relationships can change on a daily basis: consumers who have ever-changing tastes or are becoming increasingly sensitive to the negative externalities that the company may create; competitors that introduce new products; changing technologies; threats to global and domestic supply chains for key components and raw materials; credit and equity markets that require ever-changing terms; and competitive labor markets for skilled talent. A failure to deal with these stakeholder relationship issues in an integrated manner can lead a company to report mediocre financial results and eventual failure….

In sum, BlackRock’s scheme of interfering in the management of a public company’s stakeholder relationships will lead to lower, not higher, shareholder returns by undermining the critical work done in this area by people with the knowledge and expertise to manage these relationships: the company’s management.

Central to BlackRock’s approach is the importance that it attaches to the companies in which it invests living up to the standards often by the acronym ESG, E for ‘environmental’, S for ‘social’ and G for ‘governance.’ The ‘G,’ which can include issues such as insisting that the roles of CEO and chairman should be separate, is relatively and rightly uncontroversial. That is not the case when it comes to the ‘S’ and, in particular, the ‘E.’

Writing for the IFC Review a month ago, Julian Morris:

A 2016 paper from group of researchers from the European Parliament and Bournemouth Business School sought to look more deeply at the relationship, using disaggregated data from Bloomberg’s ESG Disclosure form for the S&P 500 for the period 2007 to 2011. The researchers found that the relationship between ESG and financial performance in general was indeed U-shaped. However, they found that the environmental and social components were linearly negatively related to performance. It was only the governance component that drove the U-shape relationship. This governance-dominated U-shape relationship between ESG and financial performance has since been confirmed in other studies.

Oh.

To return to something I wrote the other day:

As a shareholder, BlackRock has every right to insist that the managements of the companies in which it invests comply with its diktats. Equally, other shareholders are free to insist that BlackRock be told to take a hike, at which point the whole thing can be thrashed out at a general meeting. But many of the other shareholders will also be institutional investors. Even if they do not agree with BlackRock’s agenda, they may feel compelled by commercial pressures of the type that I have mentioned above to go along.

In effect, therefore, many companies — and not just those that are publicly listed — will be forced to change the way they do business as they try to keep up with ever-more-stringent rules set not by democratically elected legislators but by the unaccountable, the ambitious, the greedy, and the fanatical. Milton Friedman would have been appalled (if not altogether surprised) that activists such as these ESG vigilantes could exercise such a power through their ownership of shares. Today’s small investors, pensioners, and, for that matter, anyone else who depends on a robustly growing economy ought to be angrier still.

U.S.

Government Failures and Public Opinion

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A preprint study by Columbia University researchers finds that if U.S. officials had imposed lockdowns one or two weeks earlier, they could have reduced the COVID-19 death toll by tens of thousands. Over on the homepage, Jim Geraghty observes that it would have been a heavy political lift to impose lockdowns on March 1 or March 8, as the public hadn’t yet come to see the virus as dangerous and the confirmed case count remained low. But, he writes, “our government, at every level, is expected to see these problems clearly even when the public cannot.”

Indeed. But I think the government’s failure to see the problem and to call attention to it vitiates the argument that public opinion would have thwarted the faster imposition of lockdowns. Two reasons come to mind. First, the testing failure meant the public did not have enough data to accurately perceive the threat. As William Saletan points out on Twitter, a lack of tests concealed the true number of cases across the country. Wouldn’t New Yorkers, who unknowingly seeded outbreaks across the country, have been receptive to lockdowns by March 1 had they known there were already thousands of infections in their state? Second, elite cues on hard issues that require technical knowledge, like pandemics, can be enormously influential. But political elites systematically understated the threat until it was too late, ignoring politically inconvenient warnings and embracing dubious advice.

So public opinion could have been different. Maybe most Americans didn’t know how dangerous the virus was by March 1 (Jim and Michael Brendan Dougherty excepted). They might have known if we had had better leadership — from New York, from the CDC, and from the White House.

Law & the Courts

D.C. Circuit Orders Judge Sullivan to Respond to Flynn Mandamus Petition

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Michael Flynn arrives at a U.S. District Court in Washington, D.C., December 1, 2017. (Jonathan Ernst/Reuters)

Is Judge Emmet Sullivan’s collusion cameo nearing its end?

Today, the U.S. Court of Appeals for the D.C. Circuit, on its own motion, ordered Judge Sullivan to respond within ten days to the petition for a writ of mandamus filed by Michael Flynn. Earlier this week, Flynn’s counsel, Sidney Powell, filed the petition for that extraordinary writ, asking the appellate court to instruct Sullivan to grant the Justice Department’s motion to dismiss the case against Flynn.

That was after Judge Sullivan not only declined to grant the prosecution’s motion, but (a) invited non-parties to intervene in the case by filing amicus briefs (transparently, to make arguments that he somehow has authority to deny DOJ’s motion); and (b) appointed one amicus, former federal judge John Gleeson, as a quasi-prosecutor to make arguments that prosecutors are declining to make in favor of entering a judgment of conviction and sentencing Flynn.

As I noted yesterday, Sullivan’s encouragement of amicus briefs, which are not authorized in criminal cases, flies in the face of Sullivan’s own very firm orders previously declining to permit amicus briefs in Flynn’s case — some two dozen times by Ms. Powell’s count.

The appointment of Gleeson is equally astonishing and offensive to the principle of courts as impartial arbiters. Gleeson — who worked at the U.S. attorney’s office for the Eastern District of New York with Loretta Lynch (later President Obama’s attorney general) and Andrew Weissmann (chief prosecutor on the Mueller probe that brought the Flynn case — and now a Biden for President fundraiser) — has co-written a Washington Post op-ed portraying the Justice Department’s dismissal motion as an abuse of power.

The three-judge appellate panel that is considering the mandamus petition and that ordered Judge Sullivan to respond includes Judge Karen LeCraft Henderson, who was appointed to the D.C. Circuit by President George H. W. Bush (after being named to the district court by President Reagan); Judge Naomi Rao, who was appointed by President Trump; and Judge Robert L. Wilkins, who was appointed by President Obama.

It is apt to get Judge Sullivan’s attention that the only case the panel cited is United States v. Fokker Services B.V. In that 2016 ruling, the D.C. Circuit granted a writ of mandamus against a district judge who refused to dismiss a case (on a deferred prosecution arrangement) because the judge thought the Justice Department was letting the defendant off too easily. The Fokker Court explained that, under Rule 48(a) of the Federal Rules of Criminal Procedure, a judge has no power to deny a motion to dismiss charges. The D.C. Circuit there elaborated that decisions to dismiss pending charges “lie squarely within the ken of prosecutorial discretion,” and that judges may not substitute their view that a defendant should be prosecuted in place of the Justice Department’s determination that a case should be dropped.

The D.C. Circuit’s order that Judge Sullivan must respond cites Rule 48(a), along with Fokker.

The panel’s order invites the Justice Department to weigh in, but does not require it to do so. The Justice Department did not join in Flynn’s motion for a writ of mandamus. DOJ has made clear its view that the Flynn case should not have been charged and should be dropped; it has taken no position on whether mandamus is warranted to achieve that result.

Economy & Business

Special Editors Episode

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Today on The Editors, Rich is joined by David Bahnsen to discuss the state of the economy, unemployment, and how he thinks the U.S. will emerge from this crisis. Listen below or subscribe to this podcast on iTunes, Google Play, Stitcher, TuneIn, or Spotify.

Economy & Business

Will Labor-Force Participation Ever Recover?

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People who lost their jobs wait in line to file for unemployment benefits, following an outbreak of the coronavirus, in Fort Smith, Ark., April 6, 2020. (Nick Oxford/Reuters)

An increasing percentage of native-born men ages 25-54 (“prime age”) are neither working nor looking for work. The trend has been ongoing for decades, but recessions seem to accelerate it. As the figure below indicates, after prime-age men dropped out of the labor force in large numbers during the 2001 and 2008-2009 recessions, many never returned. Will the same thing happen after the COVID-19 downturn? The situation is worrisome:

The figure is adapted from a new report I coauthored for the Center for Immigration Studies. The blue line shows that the percentage of native-born prime-age men who are not in the labor force rose from 12 percent in April 2019 to a record 14 percent in April 2020. Prime-age men without a bachelor’s degree (the orange line) are now at 18 percent, up from 15 percent a year ago.

Perhaps this recession is unique, caused as it was by a virus and a lockdown rather than by structural problems with the economy as a whole. Perhaps “out of the labor force” is a misleading category right now for men who are unable (rather than unwilling) to look for work during the lockdown. Perhaps these men will go right back to work after the threat of the virus recedes and the states fully reopen. Time will tell, but the historical pattern is ominous. If states continue to clamp down on business activity, one consequence could be labor-force dropout that persists long after the economy has officially recovered.

The situation among male youths ages 16 to 24 is an additional cause for concern. As the green line indicates, over a quarter of young men who are not in school are also not in the labor force. They are the prime-age men of the near future, but they are losing potential experience that could be crucial for acclimating to the world of work. Caveats about the data apply again here, since school closures appear to have added about 2.5 percentage points to the normal fraction of youth who are listed as “not in school.” Nevertheless, the risk of men suffering a long-term separation from the labor market is real.

So what to do? First, let’s continue the phased reopenings. A second wave of the virus is possible, but permanent economic harm to millions of families is also possible. Once we acknowledge that there is significant downside risk to reopening and to not reopening, it becomes even more imperative to seek the least disruptive measures necessary to control the virus. A full lockdown should be a last resort.

Second, I’ve written extensively about how low-skill immigration serves as a kind of band-aid over the problem of labor-force dropout among natives. The availability of immigrants allows us to ignore the social and economic problems that cause native men to drop out of the labor force in the first place. Given the restrictions on immigration currently in place, now is a good time to start rethinking what immigration policy should look like when life goes back to normal.

Most Popular

How to Avoid a China-Led World Order

As the COVID-19 crisis has unfolded, it has opened our eyes to China’s rapidly expanding role in the international order and global economy. Beijing’s outsize role in the World Health Organization has come under attack, as has the muscular diplomacy used by China’s foreign ministry in responding to ... Read More

How to Avoid a China-Led World Order

As the COVID-19 crisis has unfolded, it has opened our eyes to China’s rapidly expanding role in the international order and global economy. Beijing’s outsize role in the World Health Organization has come under attack, as has the muscular diplomacy used by China’s foreign ministry in responding to ... Read More

The Party’s Over — No More Guest(worker)s

Last month's Presidential Proclamation temporarily suspending a tiny sliver of permanent immigration in response to Great Depression 2.0 also called for a review of the alphabet soup of foreign-worker programs. The relevant cabinet departments were instructed to offer recommendations "to stimulate the United ... Read More

The Party’s Over — No More Guest(worker)s

Last month's Presidential Proclamation temporarily suspending a tiny sliver of permanent immigration in response to Great Depression 2.0 also called for a review of the alphabet soup of foreign-worker programs. The relevant cabinet departments were instructed to offer recommendations "to stimulate the United ... Read More

Hong Kong, All Alone

China is currently transgressing the terms of its 1997 treaty over Hong Kong, which promised a “one country, two systems” settlement that preserved Hong Kong’s somewhat autonomous democratic institutions. These institutions guarantee rights to Hong Kongers and guard its common-law inheritance. China’s ... Read More

Hong Kong, All Alone

China is currently transgressing the terms of its 1997 treaty over Hong Kong, which promised a “one country, two systems” settlement that preserved Hong Kong’s somewhat autonomous democratic institutions. These institutions guarantee rights to Hong Kongers and guard its common-law inheritance. China’s ... Read More

Against Jo Rae Perkins

On Tuesday, Jo Rae Perkins won the Republican nomination for U.S. Senate in Oregon. The Oregon GOP says it will back her candidacy notwithstanding her associations with the “QAnon” movement. That’s a mistake. Perkins is an unreconstructed exponent of a batty and corrosive conspiracy theory running a ... Read More

Against Jo Rae Perkins

On Tuesday, Jo Rae Perkins won the Republican nomination for U.S. Senate in Oregon. The Oregon GOP says it will back her candidacy notwithstanding her associations with the “QAnon” movement. That’s a mistake. Perkins is an unreconstructed exponent of a batty and corrosive conspiracy theory running a ... Read More

Unsustainable America

Americans are having fewer babies than ever, or at least than since the government began tracking the general fertility rate in 1909. The total fertility rate ticked down to 1.7 in 2019, meaning that the average number of babies an American woman would have over her lifetime is well below replacement ... Read More

Unsustainable America

Americans are having fewer babies than ever, or at least than since the government began tracking the general fertility rate in 1909. The total fertility rate ticked down to 1.7 in 2019, meaning that the average number of babies an American woman would have over her lifetime is well below replacement ... Read More

The Makings of Modern Madness

The paradigm of mind–brain dualism, like the story of syphilis, is by no means virgin territory. However, Allan Ropper and Brian Burrell’s How The Brain Lost Its Mind: Sex, Hysteria, and the Riddle of Mental Illness puts both the legacy of dualism and the story of syphilis under the microscope, and offers a ... Read More

The Makings of Modern Madness

The paradigm of mind–brain dualism, like the story of syphilis, is by no means virgin territory. However, Allan Ropper and Brian Burrell’s How The Brain Lost Its Mind: Sex, Hysteria, and the Riddle of Mental Illness puts both the legacy of dualism and the story of syphilis under the microscope, and offers a ... Read More