I didn’t practice criminal law, so I never had any reason to bone up on the Federal Rules of Civil Procedure, but the D.C. Circuit’s decision on the Flynn case baffles me.
Well, not really. Given the makeup of the panel, I figured it was at least a 50/50 probability. But it’s difficult to see, looking objectively at the matter, why a judge should be constrained to drop a case after a defendant has either pleaded or been found guilty. One would think, at least on first blush, that after a finding of guilt, the prosecution’s sole role would be a sentencing recommendation. It’s even worse, of course, that this court ruled that the government’s motives are completely immaterial. It may be true that legal experts will be proven right, and that the full court, sitting en banc, will reverse the decision, but that is small comfort, for the fact is that the decision illustrates that our courts, thanks to McConnell, Trump, and Democratic pusillanimity, have become a branch of the Republican Party, for no one in their right mind would argue that this decision would have gone the way it did had the defendant been a Democrat. Our courts are now well stocked with right wing ideologues, and nothing the voters do for the next 25 years or so can free us from their grip. This decision is Exhibit 1 for the concept of “result oriented” judicial decision making that we learned to despise in law school. It is now accepted practice.
If Biden is allowed to win, and the courts may ultimately have something to say about that, we can expect that anything remotely progressive that a Democratic Congress or a Biden administration tries to do will be struck down by the courts. Not only will they see no need to apply the law as written, or follow established precedent, they will have no problem distinguishing between cases, so that rulings they made favoring Republicans will no longer apply if they might benefit Democrats or Democratic policies.
This decision is, more or less, simply the opening shot in the war on the American Republic. The dilemma is that any attempts to effectively deal with the problem would themselves be destructive of the system, as the only real solution would be court packing: adding a couple of justices to the present Supreme Court, and making life as difficult as possible for lower court judges.
The Constitution is an imperfect document, primarily because it gave too much power to a determined minority. Those imperfections are now, as they have before, leading us toward disaster. A completely new constitution might be a good idea, but the methods set forth in the present constitution for doing that are designed to guarantee that the same minority that has brought us to the brink of ruin could frustrate any attempt to correct the glaring deficiencies in that document.