A little background on Flynn’s original defense lawyers’ conflict of interest, and a few other things as well

The New Neo Posted on by

[NOTE: I’m hoping to post Part II of the Sullivan piece tomorrow (Part I is here). The present post provides some background to the other posts, but it’s not primarily about Sullivan.]

There are so many issues in the Flynn case – so many ways he was dealt a lousy hand as well as mistreated – that it’s hard to recall them all. One is the conflict of interest in which his initial lawyers were embroiled.

And it’s a lulu.

One of the possible charges against Flynn involved alleged FARA violations of a somewhat complicated law that until three years ago was ordinarily met with a fine for violations if it was prosecuted at all. But rather recently things changed:

Earlier [in 2019], the Assistant Attorney General for the National Security Division publicly confirmed the Department of Justice’s (“DOJ”) intention to make Foreign Agents Registration Act (“FARA”) a criminal enforcement priority. This newfound priority has resulted in surge of FARA prosecutions — including the cases against Paul Manafort, Michael Flynn and Greg Craig — with no sign of slowing down.

FARA, which was originally enacted in 1938 to combat Nazi propaganda, is a disclosure statute that requires persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities. Failure to register with the DOJ can result in criminal penalties — Despite the seriousness of FARA’s penalties, it has long been an afterthought because of federal prosecutors’ hesitancy in bringing FARA prosecutions.1 DOJ brought only seven criminal FARA cases between 1966 and 2015 (securing FARA convictions in just three cases) and had not employed FARA’s civil injunctive relief since 1991. In the last three years, however, there has been a significant uptick in the number of FARA prosecutions.

Beware of laws that have been on the books but rarely enforced and then suddenly used as tools to get political enemies. It turns out that the most important conflict of interest for Flynn’s lawyers involved FARA.

Here’s an article from last January that explains:

FARA is a complex law, and people who must make filings under it often seek the assistance of counsel…If the government subsequently asserts the FARA filing…is criminally false, the attorney is potentially implicated along with the client.

The lawyer’s interest in defending his or her actions may conflict with the obligation to zealously defend the client. Furthermore, the attorney can be a key witness if the client is charged, which may also disqualify the lawyer from representing the client in the criminal case.

In Flynn’s case, the Covington lawyers would have been witnesses either for or against Flynn regarding his FARA filings [involving work of the Flynn Intel Group regarding Turkey] and any related potential criminal charge brought against him…

Thus, the Covington attorneys who helped Flynn prepare his filings could become the star defense witnesses if they said any mistake in the filings was their responsibility rather than Flynn’s. In that event, no conflict would arise between Flynn’s interest and Covington’s interest.

On the other hand, if Flynn provided incorrect information to Covington that was included in the FARA filings, a clear conflict emerges because Covington has an interest in absolving itself from any responsibility and placing the blame entirely on Flynn. If Flynn had deliberately provided false information to Covington, the Covington attorneys would become witnesses against Flynn, and no lawyer at the Covington firm could represent Flynn with respect to the FARA charge.

If, instead, Flynn innocently provided incorrect or incomplete information to Covington, the situation becomes muddier…

Flynn’s current counsel [Sidney Powell] says this last scenario is what actually happened, that Flynn innocently provided incorrect information to Covington. It is certainly implausible that Flynn would hire a reputable firm like Covington and pay it a six-figure fee to prepare FARA filings on his behalf, only to deliberately provide the attorneys false information for inclusion in those filings. Nonetheless, the government alleged this is exactly what Flynn did.

Notwithstanding the potential conflict of interest between it and Flynn, Covington represented Flynn in his plea negotiations with the government and struck an agreement whereby Flynn effectively admitted to both lying to the FBI and making a false statement in his FARA filings. Technically, Flynn pleaded guilty to only one count of making a false statement to the FBI; he did not plead guilty to making false statements in his FARA filings. The written Statement of Offense submitted to the court as part of Flynn’s plea, however, includes facts relating to both offenses. The government inserts facts about other offenses in a Statement of Offense when it wants to establish that those facts are “relevant conduct,” which the court then considers along with the offense of conviction in imposing a sentence.

Flynn now disputes whether he admitted in the Statement of Offense that he knew at the time he provided the FARA information to Covington that it was false. He says he only learned so later. To constitute a criminal false statement, the information must be false, and the defendant must know so at the time he makes the statement. If a person makes an incorrect statement he or she then believes to be true, no offense has been committed.

That ended up being important for many reasons, including that sentencing hearing on December 18, 2018 that I wrote about in Part I. One of things that happened was that one day before that sentencing hearing for Flynn, Flynn’s associate Bijan Kian (also known as Rafiekian) and another man named Alptekin (see his history here) were indicted for FARA violations and the now-familiar charge of lying to the FBI, connected with their dealings with Turkey. Both men had been picked up as part of the Mueller investigation into Flynn.

During that extraordinary sentencing hearing (see the transcript) that occurred one day after the indictment of the two men (the timing was almost certainly no coincidence), one of the reasons Sullivan gave for warning Flynn that Flynn might get prison time despite the fact that even the prosecutor wasn’t recommending it was that Flynn hadn’t yet fulfilled everything the government might want of him. Sullivan hinted that he might – might – relent and not give him prison time if Flynn cooperated fully in testifying to help them with their case against Rafiekian and Alptekin.

Flynn got the hint, and then accepted the delay in sentencing with the understanding that he would testify. Mueller obviously wasn’t through with Flynn yet, and this was a reminder to Flynn that he (and/or his son) could get more punishment for Flynn’s own supposed FARA violations if he didn’t play ball with Mueller. And no doubt Flynn’s lawyers were well aware, with all this FARA violation prosecution going on, that they could be in trouble too, if Flynn didn’t cooperate and stick to his guilty plea.

For anyone who wonders why Flynn’s sentencing was so delayed, it was because they were waiting for the other trial and his testimony against the men. However, in the meantime Flynn fired his Covington lawyers and hired Sidney Powell in late spring of 2019, and then things began to change.

Flynn recounted some of these issues he had with his Covington lawyers in this document he filed with the court in January of 2020 (I suggest you read the whole thing), asking to be allowed to withdraw his guilty plea. If you go to numbers 17, 19, and 25, you’ll see what he says about the Covington lawyers and the FARA violations (I can’t cut and paste from that document, so you’ll need to go to the link to see it).

Ultimately, Flynn didn’t testify in the trial of his former colleagues, because he refused to say that statements any of them made in the FARA findings were knowingly false. Therefore his testimony would not have been useful to the prosecutors, and was not what they had expected (you might say it wasn’t what they’d bargained for). Although a jury found Rafiekian guilty anyway, the judge threw the case out, ruling that there was no evidence of guilt and the jury had received incorrect instructions on the elements of the crime.

It’s my sense that Flynn’s coerced testimony would have been the best evidence the prosecutors had, and without that there really wasn’t much of a case at all. The whole thing was a house of cards constructed by Mueller, and it fell down when Flynn pulled out.

Just as you might expect, Flynn’s prosecutors retaliated

The government now argues [in January of 2020] that Flynn reneged on his agreement to cooperate in the Virginia case, has reversed course on accepting his criminal responsibility for the FARA filings, and thus his sentence should not be mitigated. Accordingly, it seeks a jail sentence of up to six months’ imprisonment for Flynn. In making this argument, the government relies heavily on Flynn’s plea agreement and his Statement of Offense.

So about a year later, the prosecution made good on Sullivan’s earlier threat from the sentencing hearing. They’d been waiting for his help with the other trial, and he withdrew it. And it got worse – and here’s where that conflict of interest comes in again:

In a highly unusual request by the government [prosecutors], it seeks to force Flynn to disavow those claims or else lose any sentencing credit for cooperation and accepting responsibility. Defendants have a Fifth Amendment right to be silent even at a sentencing proceeding and cannot be compelled to answer such questions. The government requesting that the court quiz Flynn to disavow positions his current counsel is raising on his behalf is extraordinary.

Flynn is now experiencing the unpleasant effects of his conflict of interest with Covington and his misinterpretation of what he was admitting to in his guilty plea. The government now wants the court to question Flynn, before he is sentenced, about his claims of innocence and his misunderstanding of the FARA issue.

Such an unusual request speaks to how the government appears to believe that the fault for the tangled sentencing situation lies entirely with Flynn and that, having “repented” his plea, he is now playing fast and loose with the truth before the court. But another distinct — and more likely — possibility is that Covington, hindered by its own conflict of interest, was not as zealous an advocate as it should have been in resisting the FARA charge and was not as clear with its client as it should have been in explaining the consequences of his guilty plea, including the FARA issue in the Statement of Offense..

Ya think?

Good grief, Flynn has been poorly served by his attorneys prior to Powell, and by the legal system so far. “Poorly served” is a euphemism, of course. He’s been screwed by it.

Oh, and one more thing. Let’s not forget what happened in April of 2020:

Former lawyers of Lt. Gen. Michael Flynn say they’ve found thousands of additional documents related to his case that hadn’t been handed over to his new lawyers. In response, the judge presiding over the case has ordered the former lawyers to redo the search for everything they have related to the case…

“Covington determined that an unintentional miscommunication involving the firm’s information technology personnel” caused the firm to search not all of the Flynn-related emails, but only a subset that they prepared in response to document requests in a related case with Flynn’s former business partner Bijan Rafiekian, the filing said…

Powell said in an April 24 filing that Flynn was provided by the Department of Justice (DOJ) with new exculpatory evidence that “proves” he was “deliberately set up and framed by corrupt agents at the top of the FBI.”

The evidence was filed under seal and thus isn’t available to the public; Powell has asked Sullivan to unseal it.

The documents were produced as a result of an ongoing review of the case by Jeffrey Jensen, U.S. attorney for the Eastern District of Missouri, who was directed in January to perform the review by Attorney General William Barr.

Jensen’s investigation precipitated an awful lot of action, didn’t it? And then of course it led to the Barr DOJ asking that the case be dropped, followed by the stunning actions by Sullivan in refusing to do so, which brings us right up to the present.

This case is nothing if not complicated, and this post isn’t even Part II yet. But in a way it’s actually quite simple: Flynn was framed, and those who framed him seem determined to make it stick.

Governor Newsom sees the opportunity in crisis

The New Neo Posted on by

That’s a liberal politician’s specialty.

The COVID pandemic and the related shutdowns are seen by the left as an opportunity to get in their idea of election “reform”:

On Sunday, the Republican National Committee (RNC), the National Republican Congressional Committee (NRCC), and the California Republican Party sued Gov. Gavin Newsom (D-Calif.) for using the Wuhan coronavirus pandemic as an excuse for a “brazen power grab” over the state’s election system…

“In a direct usurpation of the legislature’s authority, Governor Newsom issued an executive order purporting to rewrite the entire election code for the November 2020 election. This brazen power grab was not authorized by state law and violates both the Elections Clause and Electors Clause of the U.S. Constitution. The Governor’s Order is invalid and must be enjoined,” the lawsuit states.

“Moreover, in his haste, the Governor created a system that will violate eligible citizens’ right to vote. By ordering that vote-by-mail ballots be automatically sent to every registered voter—including inactive voters, voters with invalid registrations, voters who have moved, voters who have died, and voters who don’t want a ballot—he has created a recipe for disaster. No State that regularly conducts statewide all-mail elections automatically mails ballots to inactive voters because it invites fraud, coercion, theft, and otherwise illegitimate voting,” the lawsuit argues.

Newsom is not alone, of course, in pushing this. And the Democrats have been uncharacteristically open in talking about the plan:

The mail-in voting battle comes after Democrats have capitalized on the coronavirus crisis to advance the vote-by-mail agenda. House Speaker Nancy Pelosi smuggled in vote-by-mail election overhauls into coronavirus relief bills in March and again in May, as Rep. Jim Clyburn (D-S.C.) said the crisis was “a tremendous opportunity to restructure things to fit our vision.” Presumptive Democratic nominee Joe Biden has called the coronavirus an “opportunity” for “structural change” on voting. Leftist foundations have dedicated millions to push mail-in ballot schemes.

They will not give up until they’ve succeeded, either. The left never rests, and it is well-funded. The only protection we have against this right now are the courts, including the federal courts and Supreme Court (that’s where Trump and the Senate come in), and the Senate (not just judicial appointments, but as a stop against the worst excesses of Pelosi and the House).

[NOTE: I refuse to put a “COVID-19” tag on this post, because these election “reforms” actually have nothing to do with the pandemic, which is an excuse. At this point, although COVID is a big problem, so far what has turned it into a bona fide crisis has been the reaction to it and the repercussions of that reaction.]

Memorial Day: If you’re reading this…

The New Neo Posted on by

I’ve posted this song before, but I think it bears repeating, especially on Memorial Day.

It’s Tim McGraw’s extraordinarily moving song “If You’re Reading This“:

If you’re readin’ this
My momma’s sittin’ there
Looks like I only got a one way ticket over here.
I sure wish I could give you one more kiss
War was just a game we played when we were kids
Well I’m layin’ down my gun
I’m hanging up my boots
I’m up here with God and we’re both watchin’ over you

So lay me down
In that open field out on the edge of town
And know my soul
Is where my momma always prayed that it would go.
If you’re readin’ this I’m already home.

If you’re readin’ this
Half way around the world
I won’t be there to see the birth of our little girl
I hope she looks like you
I hope she fights like me
And stands up for the innocent and the weak
I’m layin’ down my gun,
I’m hanging up my boots
Tell dad I don’t regret that I followed in his shoes…

The first time I ever heard the song I got the chills as the lyrics unfolded and I realized what it was about, and then again and again as the heartstrings were jerked harder and harder as the song went on.

I say “the heartstrings were jerked,” which sounds as though I’m being critical and the song is manipulative. Well, it’s manipulative in the sense that it means to affect the listener emotionally, and it means to sell songs. But I see nothing wrong with that, if the emotion is sincere and deep. Most of us do, or should, feel a very strong gratitude to the men and women who sacrificed their lives to defend liberty here and abroad, and a very strong sorrow that it was necessary. On Memorial Day, we thank them.

What’s going on with Judge Sullivan? [Part I]

The New Neo Posted on by

[NOTE: Here’s my attempt to tackle the question of what may have sparked Judge Sullivan’s behavior in the Flynn case. It’s probably going to be a two-parter, of which this is the first installment.

So, what’s going on here? Let me say at the outset that I don’t know for sure although I have some hunches. Politics may indeed be part of it, because after all, Flynn has become a highly important quarry for the left. Sullivan also may be experiencing some sort of decline in his cognitive powers. And it’s quite possible he’s enjoying the limelight, as well. But I think there is a basic and more personal motive underlying it all, and that Sullivan has come to hate Michael Flynn.

Judge Emmet Sullivan has certainly gotten our attention lately, by refusing to dismiss the case against Michael Flynn even though the prosecution has backed off because the investigators violated his rights and caused his prosecution to be deeply flawed.

Sullivan came to the case late, on a random assignment after the first judge – the one who took Flynn’s original guilty plea – recused himself (or was removed) for, of all things, a friendship with Strzok that was revealed in the Strzok/Page texts. Washington DC is nothing if not involuted.

The original judge, Contreras, had accepted Flynn’s guilty plea one day before the Strzok/Page texts were revealed, and he stepped down a few days after. So the case up to that point was already compromised, because of the friendship and the fact that Contreras had initially taken the case despite the relationship.

Then almost a year later, on December 18, 2018, at what was supposed to be Flynn’s sentencing hearing based on his guilty plea plus cooperation with prosecutors – a hearing at which the prosecutors were recommending leniency for Flynn and no prison term – Judge Sullivan made it clear that he was not going to rubber stamp the deal. He had his own ideas about Flynn’s crimes, and he wasn’t shy about expressing his feelings toward Flynn. On page 33 of the transcript of the hearing, you can find this statement by Sullivan: “”I’m not hiding my disgust, my disdain for this criminal offense.”

The transcript is pretty long, but if you can take the time to read it I think you’ll find it interesting. At one point (page 36), Sullivan even outlandishly mentioned that perhaps the prosecutors could have considered Flynn’s behavior treason, a statement so bizarre that it left even Flynn’s prosecutor almost unable to think of a response. Here’s the exchange:

[SULLIVAN]: …is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on [Flynn’s] part?

MR.VAN GRACK [prosecutor]: The government did not consider–I shouldn’t say– I shouldn’t say did not consider, but in terms of the evidence that the government had at the time, that was not something that we were considering in terms of charging the defendant.

[SULLIVAN]: All right. Hypothetically, could he have been charged with treason?

MR.VANGRACK: Your Honor, I want to be careful what I represent.

[SULLIVAN]: Sure.

MR.VANGRACK: And not having that information in front of me and because it’s such a serious question, I’m hesitant to answer it, especially because I think it’s different than asking if he could be charged under FARA…

Lawyers aren’t usually at a loss for words, but I think (without actually hearing an audio, which would be extremely helpful) that here Van Grack was so gobsmacked he was almost unable to answer as a result.

Quite a bit more was said about other topics, then there was a recess, and after the recess Sullivan actually apologized for his remarks. Whether he had calmed down all by himself, or whether he talked to someone who advised him to do so, I have no idea. But he felt the need to add that he really wasn’t suggesting that Flynn had committed treason, even though it’s pretty clear that he was suggesting at least that possibility. Sullivan was also well aware that what went on in that courtroom that day would be heavily reported, so he had to know his “treason” remarks would be anti-Flynn ammunition for the left.

Sullivan also makes a curious statement right after his apology [pages 40-41]. I’m talking about the next-to-last sentence in the following exchange:

[SULLIVAN]:And I said early on, Don’t read too much into the questions I ask .But I’m not suggesting he committed treason. I just asked a legitimate question.

MR.VANGRACK: Yes, Your Honor. And that affords us an opportunity to clarify something on our end which is, with respect to treason, I said I wanted to make sure I had the statute in front of me. The government has no reason to believe that the defendant committed treason; not just at the time, but having proffered with the defendant and spoken with him through 19 interviews, no concerns with respect to the issue of treason.

[SULLIVAN]: Right, right, and I’ve never presided over a treasonous offense and couldn’t tell you what the elements are anyway. I just asked the question.

As I’ve said many times, I’m not conversant with the usual courtroom conversations between judges and lawyers. But this seems extraordinary. Earlier, Sullivan has come from left field and made a statement about Flynn and treason that escalates things in a way no one has foreseen, and ultimately causes even the prosecutor (after the recess) to reassure him that no such crime was ever committed by this defendant. And then Sullivan reveals that he doesn’t even know what treason is, in the legal sense.

And that’s only a small part of what happened in that courtroom that day. By now, its shocking nature has been superseded, of course, by Sullivan’s more recent behavior in refusing to dismiss the case as the DOJ has requested, and even entertaining a charge against Flynn of criminal contempt for perjury, over his guilty plea. Sullivan’s recent actions are even more shocking and unusual than his earlier ones, and he may end up in trouble for them as a result of the writ of mandamus to which he’s been told to respond. But I believe the seeds of the whole thing began during that sentencing hearing, when Sullivan’s rage against Flynn was triggered by something (to be explored in Part II).

I believe that in addition to everything else – politics and possible cognitive issues – Sullivan became convinced that Flynn is a lying, treasonous weasel, and that Sullivan has become determined that Flynn will be imprisoned for something. Flynn has become the Moby Dick to Judge Sullivan’s Captain Ahab: “To the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.”

Andrew C. McCarthy: Flynn was framed as a Russian agent

The New Neo Posted on by

From Andrew C. McCarthy:

Well, the mystery is solved, at least if you can believe what the usual sieves — those courageously anonymous “former U.S. officials” — have told their notetakers at the Washington Post. As I surmised in last weekend’s column, Michael Flynn was not “unmasked” in connection with his controversial phone call with Russian ambassador Sergey Kislyak. He was never masked in the first place…

Though I was right that Flynn was never masked in connection with the Kislyak call on December 29, 2016, I was off the mark in hypothesizing that the conversation may be been intercepted by an intelligence agency other than the FBI — perhaps the CIA or a foreign intelligence service. Sadly, this owes to my giving the FBI the benefit of the doubt: Had Flynn been picked up on a FISA surveillance of which he was not the target (i.e., a surveillance of Kislyak), I reasoned that the FBI would have masked his identity under statutorily required “minimization instructions.” Indeed, we now know that Flynn’s identity was masked (and then unmasked) dozens of times before and after December 29, precisely because the government knew those minimization rules applied to him.

Alas, in this as in so much else throughout the Trump–Russia farce, the Bureau played fast and loose with the rules. When investigators are so inclined, it turns out the privacy vouchsafed by the minimization rules is illusory. FBI officials — if they thought about it at all — figured Flynn need not be masked because they did not see him as an innocent American incidentally caught up in foreign surveillance. They purported to suspect that he was a clandestine agent of Russia.

Of course, they had no proof of that. And they knew they had no proof. That’s why they never sought a FISA-court warrant targeting Flynn. Doing so would have required showing probable cause that he was an operative of Russia; and as to Flynn, they didn’t even have a fabulist “dossier” to rely on for such a smear.

It’s hard to read that without getting sick to your stomach.

And, as commenter “AesopFan” wrote earlier today about McCarthy himself: “I think he is finally over his former admiration of his beloved agency, but it’s been a long hard battle.” Yes, a mind is a difficult thing to change. But I think McCarthy actually changed his – substantially if not entirely – at least a year ago, maybe more. And he’s mostly been spot on in recent years with his columns about Russiagate/Spygate/Obamagate/Flynngate. In the above quote from McCarthy, you can feel (at least, I can feel) the drip of his contempt and disgust for what the FBI did to Flynn.

Please read the whole thing. But here’s one more excerpt:

Here’s a more plausible explanation of motive. The Obama administration was actively constructing the Trump–Russia collusion narrative. Obama officials saw Putin’s “no retaliation” pose as an opportunity to float the fiction that the Kremlin had cut a sinister deal with Trump to gut Obama’s sanctions as a reward for Russia’s hacking of Democrats during the campaign. Obama officials and the FBI hoped to conceal the Trump–Russia investigation from the incoming Trump administration for as long as possible, and to continue the investigation of Trump’s campaign — remember, by December 29, they had already gotten a FISA warrant based on the representation that Trump’s campaign had conspired with the Kremlin, and they were preparing to reaffirm that claim in order to get a second 90-day warrant (the second of what would eventually be four).

The Flynn–Kislyak call was intercepted because the FBI had FISA coverage on Kislyak, and both the Bureau and the Obama White House instantly recognized that hyping the call could advance all these objectives. Then, they really hit the jackpot: Even though Flynn had done nothing wrong, Trump officials amateurishly misled the public about the call — claiming that Obama’s sanctions were not discussed, rather than that the topic came up but Flynn made no concessions to Moscow. This, naturally, stoked a few “Flynn discussed the sanctions, then lied” news cycles. These amplified the frenzy over publication of the Steele dossier — choreographed by Obama-administration leaks about the Russia briefing our intelligence agencies gave Trump. Flynn’s days were numbered. By Valentine’s Day, he was cashiered as national-security advisor . . . no longer an obstacle to the Obama-driven strategy of continuing the Trump–Russia investigation after Trump took office.

The point of all this was politics, not national security.

I repeat: please read the whole thing.

ADDENDUM:

It’s interesting to go back in time and read McCarthy. Some of his columns – particularly those that expressed his faith in the integrity of someone like Comey, with whom he’d worked long ago – don’t age well. But I think the majority age extremely well. Case in point, this one from March 3, 2017, after Sessions’ recusal (which McCarthy criticized).

McCarthy had not been a Trump admirer. But this is what he wrote only a little over a month after Trump’s inauguration [emphasis added]:

…[R]est assured, this does not end with Jeff Sessions. No more than it ended with Mike Flynn [he’d recently been forced to resign]. No more than it would end if the media-Democrat complex were to obtain the much coveted scalp of Steve Bannon, Kellyanne Conway, Seb Gorka, or one of the other Beltway gate-crashers we’ve come to know over the last six improbable months. The objective is President Trump: preferably, his impeachment and removal; but second prize, his mortal political wounding by a thousand cuts just in time for 2018 and 2020, would surely do…

Democrats…have an iron-cast stomach and an unseemly zeal for upheaval. They’re ready to build. All they lack is a case. No problem: They have made one up, and they are confident not only that they will build it into a national crisis of confidence in the presidency but that the Republicans will help them.

And lo and behold, Republicans are helping them. Unwittingly perhaps, but helping all the same…

it’s not like the FBI and the Obama Justice Department didn’t try to make a case against Trump. In fact, they scorched the earth.

Besides the illegal leaks of classified information that have fueled the “Russia hacked the election” scam, this is the most outrageous and studiously unmentioned scandal of the election. While the commentariat was rending its garments over the mere prospect that Trump might have his political adversary, Hillary Clinton, investigated if he won the election, Obama was actually having Trump investigated. [emphasis in the original]

There’s a lot more in that McCarthy column from over three years ago. It’s long, but fascinating and impressive. He didn’t get all the details right, but he can hardly be faulted for that, given the information with which he had to work.

Again, it appears that Trump was right (case fatality rate)

The New Neo Posted on by

Trump’s got good “hunches.”

Apparently, this was one of them:

…[B]ack in March, the World Health Organization (WHO) estimated a 3.4 percent [case] fatality rate and Dr. Anthony Fauci estimated that the [case] fatality rate of the coronavirus was about 2 percent.

President Trump was skeptical of both those numbers, particularly the WHO’s estimate: “Well, I think the 3.4 percent is really a false number,” Trump told Sean Hannity. “Now, and this is just my hunch, and — but based on a lot of conversations with a lot of people that do this. Because a lot of people will have this and it’s very mild. They’ll get better very rapidly. They don’t even see a doctor. They don’t even call a doctor. I think that that number is very high. I think the number, personally, I would say the number is way under 1 percent.”

Several studies have suggested that Trump was right…

According to the CDC’s current best estimate, the case fatality rate of the coronavirus is .4 percent. And that’s just amongst symptomatic cases, which, the CDC estimates, is 65 percent of all cases. This means the CDC estimates that the [current] fatality rate for all infections across all age groups, symptomatic as well as asymptomatic, is approximately .26 percent.

Predicting that the rate would fall wasn’t rocket science, either. It was quite obvious to anyone studying the science carefully. And I seem to recall that many scientists (including Fauci, if memory serves) were agreeing that the number would almost certainly go down over time. Early case fatality figures are nearly always higher, because serious cases are usually the only ones that come to attention at the outset of an outbreak. Then, as time goes on, the milder and even the asymptomatic cases get uncovered, and the case fatality rate goes down. I wrote about the phenomenon several times as early as March (see this, for example).

But a lot of people – and by “people” I’m definitely including members of the MSM – don’t seem to get this very basic concept. Some of that mental denseness is feigned, I believe, because if the MSM wants to emphasize a certain figure on a certain day to hurt Trump, they will do so, and not cue the public about the tactic.

I also think that some people really do have a lot of trouble with math, and their eyes glaze over when they hear statistics. Propagandists exploit that fact.

And then there’s the CDC. At the moment, the agency seems to be conflating two different statistics:

We’ve learned that the CDC is making, at best, a debilitating mistake: combining test results that diagnose current coronavirus infections with test results that measure whether someone has ever had the virus. The upshot is that the government’s disease-fighting agency is overstating the country’s ability to test people who are sick with COVID-19. The agency confirmed to The Atlantic on Wednesday that it is mixing the results of viral and antibody tests, even though the two tests reveal different information and are used for different reasons.

Actually, the author may be making an error in that paragraph, too. The upshot isn’t necessarily that the government “is overstating the country’s ability to test people who are sick with COVID-19.” Are there sick people all over the country clamoring for a COVID test who can’t get one? There certainly used to be, but I haven’t heard that recently. It may even be that the number of people being tested for active COVID right now is very close to the number requiring such testing (I leave out those who might want a test every time they sneeze).

But what on earth is going on with the CDC in this particular case? The article doesn’t really answer the question of why the two types of testing results have been mixed, but the implication is that the government wants to make it seem like we’ve done a lot more testing than we have. I suppose that’s possible, but I actually just think it’s part of the general incompetence that seems to be in ample supply these days.

I also think the entire thing is an emphasis on the wrong numbers. The important issue with testing is whether the people who need tests (not just want tests, but need them) are getting them. But far more important in each state is the hospitalization rate and the death rate per capita. The antibody numbers are very important, too, because they will tell us how far along we are towards immunity as a population. The absolute numbers of confirmed active COVID cases and the number of active case tests performed in a state are less important, although the MSM loves to talk about those numbers.

Rip Van Winkle Wray wakes up after long slumber and announces…

The New Neo Posted on by

…that the FBI will be investigating itself to see if “current employees engaged in misconduct,” and whether any “improvements might be warranted to FBI procedures.”

Now that the cat’s been let out of the bag by others, I guess Christopher Wray figures he has to pretend to care, and the FBI has to pretend to investigate itself. Maybe it could even arrange to entrap itself.

Please forgive my cynicism here, but it’s well warranted.

That order for Judge Sullivan to respond to the mandamus writ was highly unusual

The New Neo Posted on by

Please see this:

Earlier [yesterday], the Court of Appeals for the DC Circuit issued an extraordinary order — on its own motion — directing Judge Sullivan himself to file a response to the Petition for Writ of Mandamus filed by Gen. Flynn earlier this week.

In more than 30 years of practicing law, almost exclusively in federal courts, I have never seen a federal appeals court direct a district court judge to personally respond to a litigant’s motion, petition, or appeal.

As significant, in my opinion, is that the Order directs Judge Sullivan to address the Rule 48(a) issue in relation to the Circuit Court’s earlier decision in United States v. Fokker Services.

As many reading this are probably aware, I wrote extensively on the Fokker Services decision in this story and concluded that it left Judge Sullivan no choice other than to grant the Department of Justice’s Motion to Dismiss the case against General Flynn.

My piece on Sullivan is coming. Just probably not today. It’s taking a while to organize and write. But in the meantime, I did find something important – the transcript of the December 18, 2018 hearing at which Judge Sullivan excoriated Flynn and mused about whether he could have been charged with treason. It’s quite a document.

ADDENDUM: [Found at Ace’s.]

See this Twitter thread.

Did you know that Joe Biden gets to decide who’s black and who isn’t?

The New Neo Posted on by

And he gets all folksy doing it:

“You’ve got more questions? Well I tell you what, if you have a problem figuring out whether you’re for me or Trump, then you ain’t black,” Biden quips, before smiling broadly.

And that wasn’t all.

But the left agrees that black people don’t vote for Trump, and they’ll forgive Biden for saying it out loud – unless and until they find a good substitute. Then they’ll kick him to the curb.

Steven Pinker tweets something stunningly stupid

The New Neo Posted on by

I like some of Steven Pinker’s work. His book The Better Angels of Our Nature, for example (which I wrote about here) presents a fascinating thesis that is quite persuasive, although it sounds absurd when you first hear it: that society has become less violent over time.

But the following tweet by Pinker – which contains a link to this WaPo column by Gary Abernathy – is deeply stupid in so many ways it’s almost a parody. Alas, Pinker seems to mean it quite seriously [hat tip: Ed Driscoll at Instapundit]. The following is not a quote from the WaPo piece to which Pinker links; it appears to be Pinker’s own words:

Pinker is an atheist, and says he’s been one since he was thirteen years old. Actually, he put it this way: “I was never religious in the theological sense. I never outgrew my conversion to atheist at 13.” That’s interesting. What does “religious in the theological sense” mean? Is there any other way to be religious? I suppose he means “theological” as opposed to “spiritual,” the word a lot of people use these days as a shortcut for saying they’re not into organized religion. But “theology” is the study of the Divine and of religious belief in all its guises.

More to the point, Pinker himself is an atheist, and his contention that he never outgrew becoming an atheist at thirteen is probably meant to be slightly humorous. But it is also telling. Did his atheism stagnant at that stage of his development, adolescence? That would explain a lot about the tweet.

As a supposed scientist, Pinker should know that calling belief in an afterlife a “delusion” (much less a “malignant” one) is an opinion of his, not a scientific fact. The afterlife is by definition after life, not of it. The ultimate answer, and the ultimate test, comes outside of this world and this temporal life. We do not know the answer one way or the other in the sense of scientific proof, we can only live humbly and respectfully in a state of faith or lack of faith.

Why “malignant”? Is Pinker unaware of the good that is done by religious people who believe in an afterlife: the selflessness, the sacrifice, the help to others? I think Pinker is correct that belief in an afterlife can sometimes contribute to a sense of invulnerability that can in certain limited circumstances help make a person impervious to malignant consequences: witness the suicide bomber terrorist. But they constitute such a tiny portion of believers as to be nearly meaningless – except in certain parts of the world and among certain groups. The vast vast majority of believers either live ordinary lives or altruistic ones. Meanwhile, unbelievers are hardly immune from malignant risk-taking: crimes, and even crimes against humanity.

Nor are atheists happier than believers. In fact, there doesn’t seem to be much scientific evidence that people who don’t believe in the afterlife live lives that are “longer, safer, happier.” It’s certainly not true as compared to religious people.

As Pinker well knows, or should know. But his anger and his politics seem to be blinding him here.

Of course, another point is that most Republicans are not Evangelicals, and many Democrats are. In fact, for those wishing to look at the actual numbers (not Pinker, apparently), they can be found here (from 2016). Thirty-six percent of registered voters describe themselves as evangelical, and they constitute 45% percent of Republican (or lean-Republican) voters. They also constitute 29% of Democrat (or lean-Democrat) voters, nearly a third. And both Republicans and Democrats who are Christian constitute around another third of the registered voters in each party (40% for Republicans and 35% for Democrats). So the differences exist, but are not all that large between the two parties regarding religious beliefs, and probably concerning the afterlife as well. Christian believers constitute a substantial majority of registered voters in both parties.

I’ve not seen evidence that evangelicals drive the beliefs of other Republicans in any respect. And of course, there are people who are not Christians at all who believe in an afterlife, and even – whether Pinker knows it or not – people who would be considered atheists who believe in an afterlife of spirit beings or energy fields or the like.

Lastly, there are scientists who question the value of shutdowns for COVID based purely on the science of what we’ve learned about how COVID seems to be operating: patterns of transmission, and data from countries and states that locked down harshly vs. those who did not. For example, there’s this, and there are plenty of others. The science is, as they say, unsettled. But it’s not trending in Pinker’s direction.

[NOTE: And from that Abernathy WaPo piece to which Pinker links:

The coronavirus? Christian fundamentalism is often fatalistic. As far as many evangelicals are concerned, life passes quickly, suffering is temporary and worrying solves nothing. That’s not a view that comports well with long stretches of earthly time spent waiting out business closures or stay-at-home orders. It should be no surprise that a person’s deepest beliefs about the world influence how they measure the risks they’re willing to take.

But what Abernathy is describing here, accurate or not, also indicates a stance that would be likely to accept a lockdown with equanimity rather than to protest it.

This sentence appears later in the piece [emphasis mine]:

McEwen [an evangelical leader and ex-politician] told me this week that evangelicals aren’t rattled by covid-19, either the disease or the government’s response to the pandemic, because the Bible instructs them not to let earthly fears overwhelm them.

So again, that indicates an attitude as likely to accept a lockdown as to reject one.

The difference that Abernathy – and Pinker – miss, and the one that makes the difference IMHO, is not belief in an afterlife. It is a focus on liberty rather than fear.]

[ADDENDUM: And then there’s this church bombing, which may or may not have been a false flag operation.]

Trump: the country’s not closing down if there’s a second wave

The New Neo Posted on by

I think his instincts are correct on this:

“People say that’s a very distinct possibility. It’s standard. And we’re going to put out the fires. We’re not going to close the country. We’re going to put out the fires,” Trump told reporters during a tour of a Ford manufacturing plant in Ypsilanti, Mich., when asked if he was concerned about a second wave of COVID-19.

Trump expressed confidence in the country’s ability to contain future outbreaks, referring to them as “embers.”

“Whether it’s an ember or a flame, we’re going to put it out. But we’re not closing our country,” the president continued.

We never did it before, not even with worse viruses. And we can’t afford to do it again, not in terms of life quality, mental and physical health of the non-COVID type, and people’s livelihoods.

In addition, the evidence has amassed that it probably is unnecessary. At the beginning, we needed to buy time. Time has been bought, with a high price. The voices clamoring to stay closed are all on the left, and time has (so far) proven them wrong. I certainly hope it will continue to prove them wrong in terms of COVID. And I hope we can recover from the damage.

We’re hardly alone, either. A lot of countries are facing this situation. Our federalist system, though, allows (so far) governors who wish to be little dictators to bring out their inner tyrant. The courts might stop them, although that takes time.

Speaking of time, this has been quite a couple of months, hasn’t it?

Actually, it’s been quite a couple of years, even before COVID. I remember when Trump was elected, a Democrat friend of mine said, “Well, it certainly won’t be dull.”

She was correct.

Coming attractions: and speaking of Judge Sullivan

The New Neo Posted on by

I was up very late last night, thinking and reading. Or maybe reading and thinking.

When I get hold of a mystery, something that puzzles me and interests me, it’s hard for me to let it go. I often do that in my personal life, and I do that on this blog at times. Sometimes I have an “aha” moment. But sometimes the mystery remains despite hundreds of hours of research.

Yeah, it’s a bit OCD. But to me, it’s fascinating.

One of those puzzles has been Judge Emmet Sullivan. People dismiss what he’s done by saying “oh, he’s just politically biased” or “oh, just gone nuts” or “oh, he must be getting senile.” But none of those explanations ring true for me. As Flynn’s current lawyer Sidney Powell has said (in an interview I saw on TV but don’t have time to search for right now), he was the hero of her book about the miscarriage of justice in the Stevens case. Even Powell is at a loss to explain his behavior now, and doesn’t even try (for good reason; she doesn’t want to raise his ire further).

So last night I read and read and read articles about the judge’s actions in the Flynn case as well as the Stevens case. And I’m happy to say I’ve come up with a theory of what’s really going on. I thought I’d write the first installment today, but other events intervened, and I have a social engagement this evening (Zoom, of course). So I’ve decided to take my time and I hope to write it out in the next few days.

This post was just to whet your appetite.