Obama's Rule of Law

Last week, as soon as Judge Emmett Sullivan overstepped his authority and asked for outside groups to find him a way to refuse to drop the charges against Gen. Michael Flynn, former president Obama weighed in on the legal merits of Sullivan’s actions. 

You recall that Obama graduated from Harvard Law School, where he was president of the law review. He was elected to the post, and then did not show up in the office for a year. He did not do the job and broke precedent by not writing for the law review. And yet, he was Obama so he is naturally considered an authority on the law. 

In truth, he is a highly skilled bullshit artist. His views of the Flynn matter have been shown, by seasoned lawyers on the right and the left, to have been perfect nonsense, completely at odds with the law. And yet, Obama has been getting away with this bullshit for so long that he must be surprised to see people call him out.

Beginning with Flynn’s excellent attorney, Sidney Powell.

Here is Powell on Obama’s claim that the Justice Department, in dropping the case against her client, Flynn, was threatening the rule of law. It’s amazing how leftists believe that the rule of law is limited to what advances their agenda:

Regarding the decision of the Department of Justice to dismiss charges against General Flynn, in your [Obama’s] recent call with your alumni, you expressed great concern: “there is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free. That’s the kind of stuff where you begin to get worried that basic — not just institutional norms — but our basic understanding of rule of law is at risk.”

Here is some help—if truth and precedent represent your true concern. Your statement is entirely false. However, it does explain the damage to the Rule of Law throughout your administration.

First, General Flynn was not charged with perjury—which requires a material false statement made under oath with intent to deceive.

And emeritus Harvard Law Professor Alan Dershowitz also schooled Obama in the meaning of the rule of law, and especially in the meaning of perjury:

... even if some of Flynn’s answers to the FBI were not entirely truthful, they were not “material” to any legitimate investigation. It is difficult for some people to understand that lying to the FBI or even to a grand jury is not by itself a crime. The lie must be “material.” That is a somewhat technical word that can have several meanings. One such meaning is that if the FBI already had incontrovertible evidence that provided indisputable proof of the answer to the question, then the answer given by the person being questioned — whether true or false — could not be material to the investigation.

For those who were tempted to take Obama as a legal authority, Dershowitz explains:

For instance, if the question is, “Did you ever speak to so and so,” and the FBI had a valid recording of the conversation, the purpose of the question would not have been to learn whether the conversation had occurred; the FBI already had conclusive evidence that it did occur. Instead, the purpose was to see whether the subject would lie or tell the truth. If the purpose was not to gather evidence of a past crime but, rather, to create the opportunity for the subject to commit a future crime, then questions arise: Is that a legitimate function of the FBI? Should the FBI be empowered to administer criminal truth tests to citizens who have committed no crimes?

As for Sullivan’s most recent action, it was, Dershowitz explains, wrong:

Nor did Sullivan have the legitimate authority to appoint a retired judge as he has now done, or anyone else, to argue that the Justice Department’s decision to end the prosecution is wrong. That decision, whether right or wrong on its merits, is entirely within the constitutional authority of the executive branch. The judicial branch may not second guess it, unless it has violated the Constitution, which no one is alleging. Judge Sullivan, however, is violating the separation of powers and exceeding his constitutional authority by appointing a special prosecutor. He is not above the law.

And then, there is Matt Taibbi, a man of the left, whose commentaries have defended the equal application of the law to people on the left and right. He too takes Judge Sullivan to task for a flagrantly biased intervention, but he also takes the American left to task for failing to defend civil liberties:

One had to search far and wide to find a non-conservative legal analyst willing to say the obvious, i.e. that Sullivan’s decision was the kind of thing one would expect from a judge in Belarus. George Washington University professor Jonathan Turley was one of the few willing to say Sullivan’s move could “could create a threat of a judicial charge even when prosecutors agree with defendants.”

Sullivan’s reaction was amplified by a group letter calling for Barr’s resignation signed by 2000 former Justice Department officials (the melodramatic group email somberly reported as momentous news is one of many tired media tropes in the Trump era) and the preposterous “leak” of news that the dropped case made Barack Obama sad. The former president “privately” told “members of his administration” (who instantly told Yahoo! News) that there was no precedent for the dropping of perjury charges, and that the “rule of law” itself was at stake.

But, Taibbi explains the new leftist view of the rule of law:

Warrantless surveillance, multiple illegal leaks of classified information, a false statements charge constructed on the razor’s edge of Miranda, and the use of never-produced, secret counterintelligence evidence in a domestic criminal proceeding – this is the “rule of law” we’re being asked to cheer.

And he reminds us that Obama officials were using FISA surveillance to monitor Jewish-American groups. Naturally, Jewish-American groups have not had the gumption to offer up the least protest:

In late 2015, Obama officials bragged to the Wall Street Journal they’d made use of FISA surveillance involving “Jewish-American groups” as well as “U.S. lawmakers” in congress, all because they wanted to more effectively “counter” Israeli opposition to Obama’s nuclear deal with Iran. This is a long way from using surveillance to defuse terror plots or break up human trafficking rings.

So, what happened to the American left? Taibbi asks the question and does not arrive at a very comforting answer:

I can understand not caring about the plight of Michael Flynn, but cases like this have turned erstwhile liberals – people who just a decade ago were marching in the streets over the civil liberties implications of Cheney’s War on Terror apparatus – into defenders of the spy state. Politicians and pundits across the last four years have rolled their eyes at attorney-client privilege, the presumption of innocence, the right to face one’s accuser, the right to counsel and a host of other issues, regularly denouncing civil rights worries as red-herring excuses for Trumpism.

Democrats clearly believe constituents will forgive them for abandoning constitutional principles, so long as the targets of official inquiry are figures like Flynn or Paul Manafort or Trump himself. In the process, they’ve raised a generation of followers whose contempt for civil liberties is now genuine-to-permanent. Blue-staters have gone from dismissing constitutional concerns as Trumpian ruse to sneering at them, in the manner of French aristocrats, as evidence of proletarian mental defect.

But then Taibbi asks why leftist thinkers have been throwing so much contempt at the people who have been protesting for a right to go back to work, to leave their homes, to mow their lawns, to go fly fishing on the lake. In the reaction to these protests Taibbi sees the fallout for a type of thinking that has been promoted by the Obama crowd:

Nowhere has this been more evident than in the response to the Covid-19 crisis, where the almost mandatory take of pundits is that any protest of lockdown measures is troglodyte death wish. The aftereffects of years of Russiagate/Trump coverage are seen everywhere: press outlets reflexively associate complaints of government overreach with Trump, treason, and racism, and conversely radiate a creepily gleeful tone when describing aggressive emergency measures and the problems some “dumb” Americans have had accepting them.

He concludes:

Millions have lost their jobs and businesses by government fiat, there’s a clamor for censorship and contact tracing programs that could have serious long-term consequences, yet voters only hear Trump making occasional remarks about freedom; Democrats treat it like it’s a word that should be banned by Facebook (a recent Washington Post headline put the term in quotation marks, as if one should be gloved to touch it). Has the Trump era really damaged our thinking to this degree?