In a Motion Claiming that Appointing an Amicus Is “Unprecedented,” Billy Barr Argues Against Billy Barr Twice More

DOJ has availed itself of the opportunity to provide a response to Mike Flynn’s petition for a write of mandamus at the DC Circuit.

As I’ll show, I think the reason they did so was to make yet another argument that Mike Flynn can lie wherever and about whatever, but those lies may never be deemed material to a proceeding, and therefore he must go scot-free. Along the way, however, DOJ argues that merely appointing an amicus is a totally unprecedented act. And to get there, DOJ twice argues against DOJ.

DOJ says only DOJ can determine if Flynn can lie and lie and lie

I’ve long believed that Sullivan’s order that amicus John Gleeson consider whether Flynn should be held in contempt for perjury made Flynn’s challenge more airtight. Indeed, the DC Circuit didn’t even include that among the things it asked to be briefed. Nevertheless, Sullivan included it, mostly to point out that even if the Circuit resolved the motion to dismiss, the question of whether Flynn should be held in contempt remains. Sullivan argues along the way that contempt is part of the court’s inherent authority.

Regardless how this Court resolves the Rule 48 issue, questions remain whether Mr. Flynn should be subject to any sanction pursuant to statute, the Federal Rules, and federal courts’ inherent authority to discipline those who fail to tell the truth under oath and obstruct justice in the courtroom. See 18 U.S.C. §§ 401–402; Fed. R. Crim. P. 42; Chambers v. NASCO, Inc., 501 U.S. 32, 41–44 (1991) (upholding court’s inherent authority to punish “acts which degrade the judicial system, including … misleading and lying to the Court” (quotations omitted)). This factbound inquiry involves well-established Article III powers, and the district court should be permitted to address it in the first instance.

The contempt power is “settled law” that “is essential to the administration of justice.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795 (1987). It springs from the court’s Article III responsibility to protect its essential functions, including preserving the integrity of courts and the truthseeking process. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994). Under this inherent power, “a court may issue orders, punish for contempt, vacate judgments obtained by fraud, conduct investigations as necessary to exercise the power, bar persons from the courtroom, assess attorney’s fees, and dismiss actions.” United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993).

To be clear, a contempt finding or sanction against Mr. Flynn may prove unwarranted. If the representations in his January 2020 declaration are true, they present attenuating circumstances for his prior, contrary statements. But the nature and extent of Mr. Flynn’s reversals under oath—from whether he lied to the government in January and March 2017, to whether he was coerced into pleading guilty, misled by his former attorneys, or improperly dissuaded from withdrawing his guilty plea in 2018 when Judge Sullivan offered that option—raise questions that any judge should take seriously. They thus provide a basis for invoking the district court’s authority to “conduct investigations as necessary.” Id.7

7 Contrary to Mr. Flynn’s suggestion (Pet. 11–17), Judge Sullivan’s appointment of an amicus to brief the contempt power is appropriate. Because contempt implicates core Article III powers, “Courts cannot be at the mercy of another Branch in deciding whether [contempt] proceedings should be initiated.” Young, 481 U.S. at 796. That is why the Federal Rules explicitly authorize the appointment of a special prosecutor to investigate contempt. See id.; see also Fed. R. Crim. P. 42(a)(2). Judge Sullivan’s amicus order is more restrained: It does not appoint Judge Gleeson to prosecute any contempt charge, but merely to address whether initiating a contempt proceeding here would be appropriate, and gives Mr. Flynn the last word on the question

The government must have anticipated this, because it argues at length that Flynn’s lies didn’t obstruct anything, without ever explaining why not. Along the way, they bizarrely argue there’s no evidence of he lied out of contempt for the court, suggesting that this happens all the time.

Petitioner also cannot be prosecuted for contempt because there is no evidence of “contumacious intent.” Brown, 454 F.2d at 1007. Even assuming that petitioner had the intent to commit perjury, that would not establish that he had the “inten[t] to obstruct the administration of justice.” Sealed Case, 627 F.3d at 1238. There is no indication that petitioner pleaded guilty and then moved to withdraw his plea as “part of some greater design to interfere with judicial proceedings.” Dunnigan, 507 U.S. at 93. Rather, the record shows that petitioner—like other defendants who enter pleas they later seek to withdraw— pleaded guilty with the intent to resolve the allegations against him on the best terms he thought possible at the time. Doc. 160-23, at 8-9. Our adversarial system treats plea colloquies and later motions to withdraw as an accepted part of normal judicial proceedings. Fed. R. Crim. P. 11(b), (d). An intent to acquiesce in the prosecution’s charges, even falsely, is not an intent to interfere with judicial proceedings themselves for purposes of contempt under Section 401(1).

DOJ then argues that only DOJ could prosecute Flynn for perjury.

I have zero doubt that Neomi Rao will adopt this view, for present purposes, because she has never met a ridiculous argument she didn’t like. But it would be shameful for any self-respecting judge to do so, as it effectively eviscerates judicial authority.

Appointing an amicus is unprecedented

DOJ then argues that Judge Sullivan did something unprecedented, which is what they use to justify issuing a writ.

III. A Writ Of Mandamus Is Appropriate And Necessary Relief In Light Of The District Court’s Unprecedented Order

Several pages later, after laying out the very high bar for a writ of mandamus, the government describes what Sullivan has done: appoint an amicus.

For the same reasons that the mandamus factors were met in Fokker and In re United States, those factors are met here. The only distinction between the cases is that, in Fokker and In re United States, the district court had entered an order denying the motion, while here the district court has entered an order providing for further proceedings and contemplating additional, court-initiated criminal charges.

The government is basically arguing that even appointing an amicus amounts to deciding against Flynn. Nowhere does the government claim that Flynn would be injured by this amicus, and Flynn’s only claim to injury is the delay (he himself is responsible for over a year of delay on this case).

Billy Barr argues against Billy Barr

Appropriately, for a DOJ that has refuted its repeated claims that Flynn’s lies were material by arguing they weren’t material, Billy Barr once against argues against Billy Barr.

This brief does so in two ways.

As I’ve noted, DOJ needs some kind of explanation for what changed their opinion. In front of Sullivan, they argued they had gotten “new” information, none of which is new.

Jocelyn Ballantine is (inexplicably) on this brief. She cannot argue those other things are new, because she knew all of them when she argued, in the past, that Flynn’s lies were material.

So this brief, while presenting all that other not-new information (without making any of the arguments necessary to justify DOJ’s flip-flop), doesn’t argue that it is new.

Instead, this brief argues that the investigation into Peter Strzok and Andrew McCabe is “new.”

Thereafter, new information emerged about essential participants in the investigation. Strzok was removed from the investigation due to apparent political bias and was later terminated from the FBI. The second interviewing agent was criticized by the Inspector General for his tactics in connection with the larger investigation. See Doc. 169, at 6-7. And McCabe was terminated after the Department of Justice determined that he lied under oath, including to FBI agents. Office of the Inspector General, U.S. Dep’t of Justice, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (Feb. 2018).

There are several problems with this.

First of all, DOJ never managed to indict McCabe for his alleged lies, and whether he lied is currently being litigated. Also, DOJ IG has reviewed Strzok’s conduct at great length — including the documents that at the District level DOJ claimed falsely were new — and it affirmatively stated that any bias Strzok have did not affect any decision reviewed.

But the most important reason this is outright absurd is that both of these things were public and known to Flynn on December 18, 2018 (indeed, the investigation into Strzok was known to Flynn when he pled the first time). As Beth Wilkinson noted in Sullivan’s response, Flynn disclaimed those things under oath!!!

After being placed under oath again, Mr. Flynn confirmed that (1) he did not wish to “challenge the circumstances” surrounding his FBI interview; (2) by pleading guilty he would be giving up “forever” his right to challenge that interview; (3) he knew at the time of his interview that lying to the FBI was a crime; and (4) he was “satisfied with the services provided by [his] attorneys.” Id. at 7–9. Mr. Flynn also disclaimed any reliance on revelations that certain FBI officials involved in the interview were being investigated for misconduct. Id. at 9.

We’re five months past the time Billy Barr appointed Jeffrey Jensen to go come up with some excuse to dismiss the Flynn prosecution, and DOJ still can’t decide (or find anything) what is new to justify the flip-flop.

But there is an even bigger Billy Barr belly flop in this response. As Wilkinson noted in the Sullivan response, in its motion to dismiss, DOJ acknowledged that it can only dismiss the prosecution with leave of the judge.

The government’s motion acknowledges that Rule 48 does not require Judge Sullivan to serve as a mere rubber stamp.


First, the motion acknowledges that a Rule 48(a) dismissal requires leave of the court. Id. at 10. While the government argued that the court’s discretion was “narrow” and “circumscribed,” id., it did not argue that the court lacked discretion altogether.

Barr reiterated this point in his interview with Catherine Herridge.

Does Judge Sullivan have a say?

Yes. Under the rules, the case can be dismissed with leave of court. Generally, the courts have said that that provision is in there to protect defendants, to make sure the government doesn’t play games by bringing a charge and then dismissing it; bringing another charge, dismissing it. But he does have a say.

Now, after Bill Barr’s DOJ has twice said that the Judge has a say, Billy Barr’s DOJ argues that the District Court has no authority to reject it.

Simply put, the district court has no authority to reject the Executive’s conclusion that those reasons justify a dismissal of the charges.

Again, Neomi Rao will have no embarrassment in agreeing even with a seemingly schizophrenic argument that will help Trump out, and she may well bring Karen Henderson along.

But this is an embarrassment. Bill Barr keeps shredding the credibility of the Justice Department by arguing against past arguments he has personally approved, even very recent ones. There’s no longer any pretense they have to make and sustain an argument, only provide words on a page for captive judges to rubber stamp.

86 replies
  1. P J Evans says:

    It’s really obvious that they’re afraid of what Flynn can tell courts if he has to talk.
    They’re also really afraid of the public finding out what they were really doing between the election and the inauguration. That argues that they committed some major crimes, possibly including the actual t-word.

    • Rugger9 says:

      It’s still puzzling me as well, since all DJT really needed to do was to pardon Flynn like he pardoned Arpaio, sit him down in a WH job with restricted access and stonewall any attempt to subpoena him by Schiff and the gang. AG Barr was perfectly capable of preventing any admissions before the election in this scenario and I would suspect that many of the motions before the court for transcripts, documents and other considerations would become moot if Flynn was declared exonerated by DJT.

      So, there is a reason AG Barr went to these lengths to try to hide DJT’s fingerprints on the deed to release Flynn (as if anyone is fooled by it), in a manner that seems iffy in terms of being sure of the outcome. The more that gets out the less likely Judge Henderson will go along with it, especially with Wilkerson’s and Judge Sullivan’s input. It can’t be shame on the part of DJT or concern about his legacy, since he has repeatedly demonstrated with his prior pardons and other interference that he will do anything he feels like doing.

      So, why this kabuki now? What does this method of clearing out Flynn’s trouble do that other methods would not do, that would help DJT?

      • MattyG says:

        Any chance it’s actually Flynn pressuring team DT to “do something” or he may feel inclined to sing?

        Oops – I see the idea was floated below. Gotta keep reading first…

        • Terry Mroczek says:

          I’ve thought for a while that it was Flynn pressuring WH or DOJ to do something. He has to see Trump’s re-election in question and if he isn’t sentenced or the case is dropped, he can’t be pardoned. Isn’t it then up to the next Attorney General to finish this? And – maybe at that point, Russia, Turkey, Saudi Arabia etc will all come out and result in a mass prosecutions.
          So maybe getting it done with expediency is to Flynn’s benefit and letting it go on is to ours?

          • Rugger9 says:

            Remember that DJT will have two full months to pardon Flynn after defeat in November, and he’s used his pardon power for Gallagher (war crimes conviction, for stuff we shot Japanese and Germans for) and Arpaio, so I do not think that is it.

            What does Putin or Erdogan want? Maybe that is why DJT’s fingerprints need to be away from this legal circus. Why Flynn and why now is where we will find our answer.

    • Eskimo says:

      Well said, and whether it’s Flynn threatening to talk, or his underwriters who owe Covington, or one of the other monstrous heads threatening, there is indeed a threat being made. It’s an open secret, and somebody in Flynn’s sphere is trolling the brown judge, not just the WH & Barr. The dossier Covington provided right before MTD is thick with goo, and it’s in the court’s possession, among other damning letters. Marcy really deserves a medal. Gopus delendus est ⚡️

    • Rayne says:

      Still wouldn’t be the t-word because we aren’t in a state of war with the parties who are most likely to be involved. Flynn’s role would be closer to seditious conspiracy.

      In the background while all this kabuki is going on, Mike Pompeo scrambled to “sell” what the media has called “arms” to Saudi Arabia. I will bet the ice cream in my freezer that “arms” includes nuclear technology and Pompeo is hustling to close the loop on what Flynn had been trying to do.

      It would inconvenient if Flynn lost his Fifth Amendment rights and clarified under oath whether “arms” for Saudi Arabia includes nuclear technology. Might also be inconvenient if Flynn was asked questions about a certain journalist whose last known words were “I can’t breathe.”

      • earlofhuntingdon says:

        Now we have us a second Second Triumvirate, comprised of Billy Barr, SecDef Esper, and the Chairman of the Joint Chiefs. They are to determine where and when to send troops round America. I wonder if that would be to support Goopers or suppress Dems, because it’s more likely to incite unrest than to quell it.

        The group is certainly ad hoc and only questionably constitutional. And I can’t tell which of them is legitimizing the other’s involvement more. It would look like a circular exercise to entertain Trump were the resources at their disposal not so immense.

      • soothsayer says:

        You just possibly connected these dots for me. I had not previously connected the assassination of Jamal Khashoggi and any news report he was possibly putting together, to the possible deal they were all were trying to complete or maybe already completed with the Saudis and Russians etc.

        It is still super odd to me, when Putin and MBS did a high five at the G20 summit between 30 November and 1 December 2018, which was literally less than 2 months after the assassination of Khashoggi on 2 October 2018, and in of all places, their consulate in Turkey.

        What is all even happening, seriously.

        Now I really want to know who or what hacked me, so weird.

      • Rugger9 says:

        While your “arms” idea is despicable and probably correct (nice sleuthing) I couldn’t expect Flynn to talk when there is no stick which IIRC would be the situation when he was pardoned. People like him need leverage, and there’s no money coming from the HPSCI to make it worth Flynn’s while, and a pardon would remove the stick. We know that there is no norm or legal standard this WH will not test if it’s in their interest to do so and the pardon power is pretty much absolute and unquestioned. After all, DJT pardoned Arpaio and Chief Gallagher, also post-conviction on equally flimsy grounds.

        So why the kabuki by Barr via Powell?

  2. earlofhuntingdon says:

    Golllleee. What an impressive list of signatories. The low-woman on the ladder signed the government’s response – AUSA Jocelyn Ballantine. Eight, count ’em, eight other signatories have their names on the response. I assume that’s meant to cast them as the Green Monster at Fenway Park, and Wilkinson and Sullivan as rookie right fielders:

    1. Noel J. Francisco, Solicitor General
    2. Brian A. Benczkowski, Assistant Attorney General
    3. Jeffrey B. Wall, Deputy SG
    4. Eric J. Feigin, Deputy SG
    5. Frederick Liu, Assistant to the SG
    6. Vivek Suri, Assistant to the SG
    7. Michael R. Sherwin, Acting US Attorney, and
    8, Kenneth C. Kohl, Acting Principal Assistant US Attorney

    I see that the DC USA and his principal assistant are “acting,” so they won’t be around long. The emotional benefit of a crowd is that it’s hard to tell who threw the rock into the legal plate glass window.

    • Peterr says:

      I think it’s more a sign that the laughter that greeted the DOJ motion to dismiss the case which was signed only by Shea struck a nerve.

      I can hear Trump now: “I want this signed by lots of people. Important people. People with great titles. If you can’t get them to sign, remind them that I gave them those titles and I can take them away.”

    • Duke says:

      So much for amendment one.

      djt was commissioned to destroy and destroy he is. America has had a catastrophic stroke induced by a bad diet of fake realities.

    • Fenix says:

      Honest question: What’s the scenario for these signatories after they leave the DOJ? Will there be any lingering ramifications that will hurt their future employment prospects?

  3. CD54 says:

    Outside of Contempt does the Judiciary have any standing with respect to Obstruction of Justice?

    Could an aggressive future AG include all of these mopes in an omnibus conspiracy to obstruct justice prosecution?

    • arbusto says:

      If we’re allowed an election, Biden wins and takes office in 2021, I expect he and his AG with quote Obama: “This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.””

      • Rugger9 says:

        No way Sanders, Warren, AOC, Ted Lieu, etc. will allow that. I don’t think Pelosi will either now that DJT has made it consistently personal for his insults of her. W was all alone as the worst President ever, but at least he left the personal nastiness to Cheney as a rule.

        Fool me twice also applies here.

        • arbusto says:

          The Powers That Be (aka The Deep State) are embodied in Pelosi and Schumer. Expect a strongly worded memo. The rest of Congress can bitch and moan to their hearts content but will there be hearings, investigations, referrals and special prosecutors or DoJ action? It’s going to be the Democrats campaign banner “Go Along to Get Along”

  4. earlofhuntingdon says:

    This response mimics Sol Wisenberg’s critique of Powell’s book – it’s 46 pages of conclusory arguments that fail to address the key points. It simply disagrees with Wilkinson and Sullivan’s arguments and expects the DC Circuit to agree with the DoJ on that basis alone.

    I also see that, despite earlier claims that precedents as old as 1973 should no longer be considered binding, this response not only cites that 1973 decision, its other citations go back to 1831. As EW says, consistency is not one of Bill Barr’s virtues.

    The response dismisses as dicta – persuasive but not binding statements in an earlier decision – arguments in cases with which it does not agree. But the principal soundbites in a case it does rely on, Fokker, are themselves dicta. As EW says, “There’s no longer any pretense they have to make and sustain an argument, only provide words on a page for captive judges to rubber stamp.”

    • Ginevra diBenci says:

      Is it just me, or does Barr’s belly seem to have expanded extra-judicial authority? I just saw the picture of him walking DC last night with his Law & Order castmates forming a phalanx behind him, and I was shocked. I fear the pressure might be getting to him, as it is to the president, and that bodes very ill for us as a nation.

  5. pdaly says:

    I blame Ralph Waldo Emerson for inspiring Barr with “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”
    Barr is trying to unshackle himself from the ways of the past.

  6. x174 says:

    On “There’s no longer any pretense they have to make and sustain an argument, only provide words on a page for captive judges to rubber stamp”: nicely explains why the motion comes across as choppy and nonsensical, illogical and internally contradictory. thanks for explanations of “dicta” and obstruction (which seemed functionally unclear in the motion).

  7. Stephen J. Murphy says:

    As a lawyer, I find this to be an example of begging the question. (Since you don’t understand, look up the meaning of the phrase “ begging the question “. )It is stupid and ignorant in addition.

    • bmaz says:

      Oh hi there Stephen. I am a lawyer, and understand exactly what it means. Marcy too knows. We also know that it is a weak, and almost always a lazy and fallacious, argument to attempt response with. But, hey, you are a lawyer so you know that.

      You know what is really stupid and ignorant? Parachuting in somewhere making a belligerent ass of yourself when you have no idea who you are dealing with. But, hey thanks for trying to play!

    • Maureen A Donnelly says:

      go away troll. go away. take it elsewhere. your lawyerly words are vacant and nobody has time for you. come back when you want to have an adult argument with the folks here.

    • Ginevra diBenci says:

      To whom might you be addressing your contemptuous statement, Mr. Murphy, Esq.? My brief perusal of comments does not turn up an incorrect usage of “beg the question,” nor do I recall seeing such on this site, although admittedly the Usage Hawk in me has been distracted recently by such trivial matters as human rights and respect for my fellow/sister commenters. Why do you assume ignorance? I am sorry that you did not see fit to share your superior understanding of the phrase with the rest of us; note the efforts most go to here to go “the extra mile” instead of telling the rest of us to “look it up.” I appreciate this every time.

    • Ginevra diBenci says:

      Dear Mr. Murphy, Esq.: Thank you for sharing your insight. It would be helpful in the future if you would observe this page’s informal etiquette, should you wish to contribute again. We do not, as a rule, enjoin our peers to “look it up” when seeking to inform; we supply links or explain in our own terms. We do not label posts “stupid” or “ignorant”; when we disagree, we explain our views. And most of all, we never assume a position of condescension, because bmaz and rayne will slap that sh*t right down. Got it? Also, it’s just wrong. Many if not most of us know what “begs the question” means (I’m not a lawyer but I do have 4 Ivy League degrees in relevant subject matter, and I don’t think I’m an outlier), but Marcy sure as hell does, and if you’ve got a bone to pick with her arguments, do THAT. Best wishes, a proud EW poster

      • Ginevra diBenci says:

        So sorry for not one but two overheated responses to that post earlier. I thought my cat Basta had erased the first one (it wasn’t visible 30 minutes later), and so because I’m obviously not handling anything very well right now I wrote the second one. Please feel free to read neither one!

          • Ginevra diBenci says:

            Thanks, bmaz. I was genuinely hoping he would return to explain his argument. I suspect, however, that he didn’t really have one. Nothing about his post suggested a true ability to take on EW’s post at its level.

  8. I Never Lie and am Always Right says:

    Barr and all of the DOJ attorneys who signed these pleadings sure make lousy defense counsel. I wonder what their “retainer” consisted of.

    • rip says:

      I’m sure the retainer agreement included especial NDIs. Probably more stringent than some of his other ladies-of-the-night. (Cohen vs. Sekulow?) Still stringers and disaster-chasers (apologies to real ambulance chasers.)

  9. earlofhuntingdon says:

    Donald Trump’s fascistic goal of physical domination is not going away at the pull of a lever in an election booth.

    He has set his stage by proclaiming that 50 state governors are shamefully weak and not protecting their citizens. He has corralled the Attorney General into a triumvirate with the SecDef and Chairman of the Joint Chiefs. He is moving airborne and mountain troops into position, troops not trained in civilian population control or restraint.

    He is desperate to hang on to power, to avoid liability for his failed presidency and his decades of misconduct. He admits nothing but his self-interest. He is vicious, paranoid and pathologically afraid of being seen to be weak.

    WTF are the Democrats? Joe Biden shakes his head as events move faster than his seeming willingness to take them in. Ms. Pelosi is keeping her powder dry, to what end is not apparent. Chuck Schumer is in his usual Wall Street closet. You know you are waiting too long to act when the Germans see a war coming before you do.

    • earlofhuntingdon says:

      Regarding Trump’s use of the Chairman of the Joint Chiefs of Staff (CJCS) – along with the SecDef and Billy Barr – in assigning army units to police America, it might seem counter-intuitive, but,

      The Joint Chiefs are not in any chain of command. Their only role is to advise POTUS. It is illegal for CJCS to exert operational authority over the armed forces.

      That also applies, BTW, to SecDef and Bill Barr.

      • earlofhuntingdon says:

        Regarding the role of Bill Barr generally, EW hits the corrupt nail on the head:

        What’s going on at DOJ is NOT, as NYT claimed, about the Unitary Executive. Call it corruption–which is what the Stone and Flynn interventions are, call it authoritarianism (which is a belief the Constitution doesn’t matter, not a theory of the Constitution).

        That last part is key. Trump and Barr are defined not by a shared belief in what the Constitution means, but by a shared belief that it does not matter.

        • John Lehman says:

          It’s getting to the point where our only real hope for justice is from an effective administration of a world body. Afraid many national bodies are shibboleths. It would be great if the “Blue Hats” (U.N. forces) were involved with policing the streets rather than some dictatorial scheming morons.

          Hopefully the shibboleths can be removed peacefully instead of with pitchforks and/or war.

          • Rayne says:

            Why not simply call for a civil war? UN Peacekeeping forces on U.S. soil would do just that, trigger a right-wing uprising.

            • John Lehman says:

              You’re probably right but I’m an impatient idealist hoping for peaceful change.
              Our, (U.S.) Civil War did end the horrible shibboleth of slavery and the vestiges of this horror (slavery) are continuing to be destroyed by the evolutionary unfolding of justice. Black Lives Matter movement today is an example of this continuum, we’re still fighting the civil war.

              Bottom line; if it really gets hot, who would you rather be patrolling the


              • Rayne says:

                I live in Michigan. Who do you think is going to pop off and declare a civil war when the blue helmets show up? It’s those jackasses screaming at Michigan State Police in the state capitol building, that’s who. There won’t be any “patrolling the streets.”

                • P J Evans says:

                  I suspect at least half the country would be *relieved* to see the blue helmets show up.

                • John Lehman says:

                  Know the type. Grew up small town along I-75, 70 miles south of Toledo did lots of farm work.
                  Yes willful jealous ignorance, eager Brown Shirts and a corona virus Reichstag all the raw materials for a U.S. dictator. Sad, fear there will be martyrs. A natural target on my back as an unapologetic globalist in an interracial marriage, very proud of my interracial, international extended family (India Indian, Iranian, Liberian, Chinese, Swiss) and inter-religious (Hindu, Zoroastrian, Buddhist, Christian, Jewish, Baha’i)
                  Luckily live in a west coast city now a little safer but we still have plenty of reactionaries. 70 years old now maybe 20 good years left in me. If they want me I’m here.

            • Fenix says:

              Please don’t flame me but I believe that’s what the right’s goal is. They’re calling it a boogaloo

              • Rayne says:

                My reply was sarcastic. I guess I should have added the sarcasm tag.

                If the point is to avoid doing what white nationalists want from this country, why the fuck would we do what would encourage their boogaloo?

                And yeah, I know what the white nationalists mean by boogaloo. I’m pretty fucking pissed at their colonialist attitude taking possession of “big luau” and Hawaiian shirts as symbolism for their civil war aims. They can’t stop their racism if they tried.

      • OldTulsaDude says:

        Illegal. We keep using that word. I do not think it means what we think it means.
        It does not mean we will enforce or that we even can enforce. Then what?

        Norms have always been our safeguards. When those norms are trampled and ignored, when the goal is to corrupt the courts and the military, then what?
        We are quickly reaching the Malone moment: And then what are you prepared to do?

      • Molly Pitcher says:

        MSNBC just showed a quote of Trump saying that he had put Milley, Chair. Joint Chiefs “in charge of the military support of the police”.

        • earlofhuntingdon says:

          Gen. Milley has no operational authority over any military units. His “coordination” would legally be limited to advising the president and asking him to tell those who have operational authority to do whatever state authorities have requested – and which is in their authority to give.

          It is the US Northern Command, based in Colorado Springs, and under USAF General Terrence O’Shaughnessy, that has the authority to provide assistance to non-military authorities in the US.

          As usual, Trump is mucking things up.

      • vvv says:

        Somebody decided that’s not correct/gotta change/is to be ignored:

        Attorney General Barr ordered authorities to clear protesters near White House, DOJ official says
        ht tps://

      • Rugger9 says:

        Some of the prior chairmen of the JCS have also picked apart GEN Milley in public statements, which is really only reserved for grandiose FUBARs at that level of seniority. So far I haven’t seen any prior JCS chairs defend GEN Milley, but please correct me if I missed something. Add to that the attempts by the WH to claim those were only smoke bombs and not tear gas (I’m pretty sure the journos know the difference) and the risible attempt by Milley and SecDef Esper to pretend they didn’t know protesters were being forcibly evicted from Lafayette Square means they never got out much in their time in the service. Yeah, right.

        Nice going, Hope. According to AG Barr he had widened the green zone around the WH by a block and that would include Lafayette Square, but I did not see any documentation to show it was announced to the public so the citizens would know to stay out.

        The WH put out an ad shortly afterward showing the walk (no, I won’t link to it) as if DJT was a brave soul, and Scott Walker jumped right in to lick DJT’s boots.

      • earlofhuntingdon says:

        The Democrats do, indeed, need a plan, should Republicans claim that Trump’s 2020 loss is based on “voter fraud,” and force the decision into the hands of the House, where each state has one vote. A majority of states are controlled by Republicans.

      • drouse says:

        The first sentence in section III.
        8. We find that grant of this unopposed Petition is in the public interest, subject to the conditions discussed below

        Unopposed? Double what the hell.

          • drouse says:

            None is mentioned in the filing. I searched for both comment and public. Nothing for comment and all instances of public were followed by interest. So the public interest is made by bare assertion without any public input.

      • P J Evans says:

        All I can figure is that someone wants to buy the company. I can’t find any information about it as being proposed or in progress. (Since they own Westwood One, I’d guess Murdoch or some similar conservative outfit.)

    • SelfAbsorbed says:

      I saw something about this and while trying to find the article I found this article which contains some information I find suspicious.

      “In an unexpected Executive Order issued April 4, 2020, President Trump established the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (the “Committee”) to take on the role formerly performed by Team Telecom. The new committee will be chaired by the Attorney General and have membership similar to Team Telecom, and will advise the FCC on national security and law enforcement issues arising from applications for new licenses or license transfers relating to U.S. telecom services. In addition, the order creates an advisory committee largely parallel to the membership of the Committee on Foreign Investment in the United States (“CFIUS”)

      Bill Barr is going to head up this new committee. And wait, it gets better

      “ As noted above, the Committee will be chaired by the Attorney General and full membership will consist of the Secretary of Defense, the Secretary of Homeland Security, and “the head of any other executive department or agency, or any Assistant to the President, as the President determines appropriate.”… Recommendations made by the Committee to the FCC will be based on a majority vote with the Attorney General breaking any ties“

      So Esper is included too, and Barr gets to be the tie breaker on votes. Then I found this article saying the FCC approved Cumulus Media’s request for foreign investment on May 29.

      “ The FCC has granted a Petition for Declaratory Ruling filed on July 19, 2018 to Cumulus Media asking the ageny to exercise its discretion to permit the company to exceed the 25 percent foreign ownership benchmark. Specifically, the Petition requested approval to permit up to and including a sum total 100 percent direct and/or indirect foreign investment (voting and equity) in the company. The Petition, which is unopposed, was filed on behalf of itself and each of its direct and indirect subsidiaries which hold broadcast licenses.

      The Commission found that it will serve the public interest to grant the Petition, and the ruling is subject to the terms and conditions set forth in section 1.5004 of the Commission’s rules, including the requirement to obtain approval before foreign ownership of Cumulus exceeds the terms and conditions of this ruling. Cumulus must also obtain specific approval for any foreign individual, entity, or group of such individuals or entities that holds, or would hold, directly and/or indirectly, more than five percent (or more than 10 percent for certain institutional investors) of the equity and/or voting interests, or a controlling interest, in the company.

      Cumulus owns and operates nearly 450 full power radio broadcast stations, together with translator and booster stations and other ancillary facilities licensed by the Commission, in 90 markets. Cumulus also owns Westwood One, a producer and syndicator of radio content.“

      So it looks like Trump put Barr in charge of the FCC national security screening process for foreign investments & turbo charged the timeline in an unexpected EO on April 4. Then on May 29 the FCC approved a request for Cumulus Media, which owns 450 radio stations, to be owned 100% by foreign investors, pending approval by Trump’s newly created Committee, chaired by Billy Barr himself. This is all too coincidental. April 4 Trump was consumed with fucking up his pandemic response, why was he issuing EO about the FCC‘s national security screening process? Something’s rotten in the state of Denmark.

  10. PeterS says:

    In a case full of unpredictable, and unpredicted, twists I’m a little surprised at the certainty about Rao’s future decision.

    • Rugger9 says:

      You shouldn’t be surprised about how Rao will rule, if you were paying attention to her confirmation hearing and her rulings and questions from the bench since she was elevated to the DCC. Remarkably consistent and equally wrong and ridiculous.

      • bmaz says:

        Oh, Rao is a lost cause on this issue. Wilkins is fine. Karen Lecraft Henderson is the only fulcrum point on the panel. And the safe bet is that she votes with Rao, and then it is, putatively, up to a full en banc.

        • Rugger9 says:

          How does the 11 judge en banc break on the rule of law, or are those selected out of a pool as well?

          • bmaz says:

            I would think they would overturn a Rao based opinion by the panel, but it might be close as Trump has made inroads there.

  11. earlofhuntingdon says:

    The Guardian and the WaPo report that Bill Barr personally ordered that “the perimeter” around the White House be extended, and when it wasn’t done in time for the president’s perp walk to St. John’s – which is east of the WH, Lafayette Square is north – said, “This needs to get done. Get it done.”

    Majordomo* Billy Barr. That bit of micromanagement by the Attorney General – like Dick Cheney, willing to do any little thing for his president – ought to show up as a campaign expense and be paid for accordingly. Along with the marginal cost of all those extras for clearing the set. Silly me, I thought doing that sort of thing on the public dime was illegal.

    [* Roughly translates as butler or chief of the household’s domestic staff.]

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