Thinking about Things: Lockstep Lockdowns and L’Affair Flynn

By John DeQ. Briggs

I have been thinking in the last couple of weeks about two particular subjects, not as unrelated as at first glance they might appear.  

Lockstep Lockdowns

Coronavirus lockdown in India. COVID-19 concept. 3D illustration.

The first has to do with the unusual demands, mostly on the left, for the continued lockdown of the economy and the quarantine of the citizenry based on public health concerns and the advice of elements of the medical profession. This view is being contested, more or less on the right, by various groups who decry the increasing economic wreckage being caused by the lockdowns; the disregard of First Amendment religious rights; and more broadly the loss of individual liberties that have resulted (putting to one side the fact that non-violent inmates are being released from crowded prisons in the name of social distancing – so there is that increase in liberty for some fortunate felons).

What first got me thinking about this in a more than ordinary way was a fascinating article in the Wall Street Journal about Freedom and Sweden’s Constitution.  As many will know, there has been virtually no lockdown in Sweden and social life there proceeds largely under the pre-pandemic rules. The reasons for this are set forth in the article at the preceding link. At the risk of oversimplification, the Swedish people trust each other; they trust their elected officials; and most importantly they trust their public institutions. Certain vital public institutions are not subject to political oversight and therefore do not have to respond to political pressure. Their public health institutions have a broader vision than, for example, the CDC. Those trusted Swedish institutions take into account secondary and tertiary order impacts of decisions made to protect health and safety. The noninterference of the government in these types of public institutions (what some might call a “deep state”) is embedded in the Swedish Constitution itself.

The cornerstone of the Swedish response to the coronavirus is its constitution’s most important part, the Regeringsform. Chapter 2, Article 8, which states:

“Everyone shall be protected in their relations with the public institutions against deprivations of personal liberty. All Swedish citizens shall also in other respects be guaranteed freedom of movement within the Realm and freedom to depart the Realm.” 

The Public Health Agency of Sweden – like other public bodies, such as the world’s oldest central bank, the Riksbank – operates with an incomparably high degree of independence from the government. Chapter 12, Article 2 of the Regeringsform spells this out:

 “No public authority, including the Riksdag [Parliament] or decision-making body of any local authority, may determine how an administrative authority shall decide in a particular case relating to the exercise of public authority vis-à-vis an individual or a local authority, or relating to the application of law.”

This Swedish model is not readily characterized as “left” or “right.” But it represents an extraordinary pact that seems to bind Swedes to each other, their agencies, and their elected representatives. It is hard to imagine such consensus and trust in these United States. We have always been a fractious polity other than for short periods of time (during World War II perhaps). I was exchanging thoughts and emails with a beloved niece who married a Turkish man some 25 years ago and has raised her family in Istanbul, one of the most wonderful cities of the world I have yet to visit. She was a journalist until her newspaper was shut down by Erdogan in the wake of the failed revolution. She is a keen observer from afar, with a unique perspective on events in America.  

She sent me a fascinating article from a publication (“Consent Factory”) that I had never heard of. The article, entitled Virus of Mass Destruction, is here. The opening paragraph reads as follows:

There comes a point in the introduction of every new official narrative when people no longer remember how it started. Or, rather, they remember how it started, but not the propaganda that started it. Or, rather, they remember all that (or are able to, if you press them on it), but it doesn’t make any difference anymore, because the official narrative has supplanted reality.

After discussing some examples of this, the author moves along to the general thought that:

It is the goal of every official narrative to generate this type of herd mentality, not in order to deceive or dupe the public, but, rather, to confuse and terrorize them to the point where they revert to their primal instincts, and are being driven purely by existential fear, and facts and truth no longer matter. Once an official narrative reaches this point, it is unassailable by facts and reason. It no longer needs facts to justify it. It justifies itself with its own existence. Reason cannot penetrate it. Arguing with its adherents is pointless. They know it is irrational. They simply do not care.

This entire thesis is then presented in terms of the current coronavirus narrative, or at least the narrative put forth by much of the left. We thus see threatening signs: police and judicial actions against citizens for social contact, including religious participation; millions of people downloading contact tracing applications; hairdressers and barbers put in jail; the bleaching of beaches in Europe and other such irritatingly authoritarian actions. These incremental steps – towards little bit more authoritarianism here and a tad more there – are all justified on the grounds that the virus is a deadly threat to humanity as we know it. It is all for our own good. Thus, we are bombarded by frightening statistics, albeit not usually in any fully comprehensible context. The shrieking headlines are indeed a bit scary. And many of the authoritarians are doubtless acting with a measure of good faith. These incremental steps indeed may be for our own good – provided we have the resources to avoid the economic impact of the lockdown. Provided we are part of the 1% or the 5% maybe. 

Anyway, whether the problem is the virus or the economic wreckage, blame is cast at the Administration, China, various large state governors, MSNBC, Fox News, the rest of the media and anyone else who might be a handy blame target for various target audiences. Indeed, the search for someone or something upon which to fix the blame seems to be more energetic than the search to fix the problem, a subject on which there is no consensus. Multiple narratives twist and turn all interconnected with the main narrative of a health crisis so serious that it is worth wrecking the world economy and eliminating some 30-40 million jobs in the United States, not to mention increasing the national debt by unimaginable amounts.

I do not mean by these remarks to be dismissive of the dangers of the coronavirus. It can be dangerous and deadly to many people. It can also be harmless to many people. It is not understood. It is justly feared. Most likely there is not any altogether “right” or “wrong” on how to deal with the pandemic. But our public policy approach to the problem ought at least be capable of taking into account rational and obvious trade-offs. However, after so many weeks of economic catastrophe (see reports here about The Death of a City (NYC) and massive restaurant failures across America) I am beginning to get the feeling that some of the lockdown decisions are being made and have been made by the same people who say about almost anything: “If this saves one human life, it is of course worth the cost.” It is sad that we do not have public administrations as in Sweden that can avoid tunnel vision and can seek to balance multiple risk and reward factors in a multifaceted and multidimensional way. In so doing, they seem to bring about outcomes that balance short-term health and economic issues against long-term health and economic issues. Here, the debate never seems to get very much further than sloganeering.

My niece and I exchanged emails about much of this and about the oddity that it is not the “fascist right” in this country but rather “the liberal left” that seems the most committed to the narrative that prescribes a form of near-totalitarian lockstep lockdown. But it was her summation that took my breath away. She found it at once pathetic and sad that the liberals in the US, and their actions with regard to the coronavirus, brought to her mind the last lines from George Orwell’s 1984 after the protagonist Winston Smith had finally given in to the totalitarian regime. The last sentences of the book are these: “But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.”

The Flynn Affair

Iolanthe by Gilbert and Sullivan - Winning

The second thing on my mind recently has been the puzzling, indeed bizarre, public discourse in the media and by the judiciary itself over the decision of the Justice Department to move to dismiss the prosecution of General Michael Flynn. The Justice Department’s motion and subsequent events are something of a spear to the heart of the long-accepted herd narrative about the General. Indeed, it threatens to create a new narrative altogether about extraordinary misconduct from the inception by the FBI and Department of Justice in all aspects of their handling of the Flynn Affair.

The guilty plea, the prosecution, the decision to dismiss the prosecution, and the judicial attacks on the General and the Justice Department by the presiding judge present an unprecedented and improbable spectacle. The entirety of the matter calls to mind a Frankenstein stitching together of The Bonfire of the Vanities, the Dreyfuss Affair and the 1793-94 Reign of Terror, with the media playing the roleof The Committee of Public Safety, Judge Sullivan playing the role of the Jacobin leader Maximillian Robespierre, and William Barr playing the role of Émile Zola, the writer who laid bare (in his famous J’Accuse open letter) the corrupt motives within the French Army and the French government that underpinned the baseless prosecution of Colonel Dreyfuss. Readers may well recall that Zola was actually imprisoned for a year for exposing the crimes (a phony libel charge), much as today’s media mob would imprison Attorney General Barr for such conduct. In each case, the real offense seems to have been the disruption of the herd narrative.

The Justice Department’s decision has unleashed a tsunami of criticism of the Attorney General for doing what responsible prosecutors are routinely applauded for doing: dropping a case that has been laced with layer upon layer of prosecutorial misconduct within the FBI and the Justice Department It has been routine in this country for decades that the sins of the prosecution relieve the defendant of criminal responsibility for that with which he was accused. This is not an approach to law and justice that is intended to reward the conduct of the defendant; it is an approach that is intended to maintain an undoubted integrity within the criminal justice system itself.

Those who condemn Attorney General Barr, and they are many, seem to do so on at least two unrelated grounds, neither of which has any pertinence to the matter at hand. First, he is treated in much of the media as a handmaiden of President Trump with a long history as a believer in the Constitutional defensibility of strong executive power. Right or wrong, these might be reasonable political attacks if Mr. Barr was running for political office, but they have nothing to do with whether the misconduct by the prosecutors in the matter of General Flynn was itself grossly improper or even criminal. Second, the critics of the Justice Department’s motion to dismiss the prosecution, and this appears to include the presiding judge Emmet G. Sullivan, focus on the fact that General Flynn has done some very bad things over the last few years. And it seems beyond dispute that this is true. See for example this article from the conservative American Enterprise Institute about General Flynn’s bad judgment and this more mainstream OpEd piece from the Washington Post headlining that Flynn is not a martyr but instead a crook and a crackpot whose embrace by the right is intended to distract the public from what the writer (a Paul Waldman) describes as the Administration’s “spectacular failure on the coronavirus pandemic.” Mr. Waldman’s article posits that the brouhaha surrounding the misconduct of the prosecutors is just part of an “attempt to create a new fake ‘scandal’ that will send us all down an endless rabbit hole chasing absurd lies and conspiracy theories.” Meanwhile, in the background and without modern precedent, Judge Sullivan has appointed a retired judge friend of his to oppose the Justice Department’s motion to dismiss General Flynn’s prosecution and he has also invited “ the public” (a public mob one is tempted to say) to file amicus curiae (friend of the court) briefs expressing views as to what he should do with the Government’s motion to dismiss the Flynn prosecution. It all has the feel of gladiator combat in the coliseum. What sayeth the public mob about General Flynn: thumbs up or thumbs down? People’s reaction seems to depend not on any facts, but on their political views.

The majority of the commentators seem to hold several simultaneous and somewhat conflicting views more or less along these lines: General Flynn is a bad person; his prosecution was sullied by massive misconduct; because General Flynn is a bad person, he should be sentenced to jail; the prosecutorial misconduct is just a shiny object that is being used to distract you from the reality that William Barr is a bad person and that President Trump is worse. Like Schrödinger’s Cat, General Flynn can be thought of as simultaneously alive and dead. Does the conduct of the prosecutor matter anymore? If the majority agrees that a person is or has been “bad,” should that be the end of it? Wither the rule of law?

What in the world is one to make of this strange cognitive dissonance? This confusing state of affairs led me to mistrust much of what I was seeing or hearing in the media and so last week I determined to find and read the actual May 19 mandamus petition filed by General Flynn’s new lawyers and limit myself more to primary source materials. A mandamus petition is a petition filed by a litigant in a higher court under the All Writs Act of 1789, which authorizes federal courts to issue writs “in the aid of their respective jurisdictions and agreeable to the usages and principles of law.” In this case the higher federal court is the United States Court of Appeals for the District of Columbia Circuit. A mandamus petition is for all practical purposes a lawsuit against the judge by a litigant filed with the appellate court. The mandamus petition in this case is frankly far more interesting than any of the press reports about it. It is 29 pages long (double spaced) and it lays out a tale of prosecutorial misconduct and judicial irregularity that seems to warrant all of the relief asked for, including the replacement of Judge Sullivan with another judge should any further proceedings be required.

What makes the mandamus petition in this case especially unusual is that the party opposing General Flynn, the Justice Department, will not defend the judge’s conduct and so he is in a very real sense on his own. For a sitting federal judge, this is threatening and awkward. I believe judges tend to take this sort of thing quite personally. So, Judge Sullivan has had to do what other accused people have to do. He has had to hire his own personal lawyer (interestingly, the same lawyer who represented Justice Brett Kavanaugh before the Senate Judiciary Committee) to defend his judicial conduct in front of the appellate court that sits over him. Moreover, the appellate court has taken the extraordinary step of sua sponte (on its own without being asked to do so) ordering Judge Sullivan to file his answer to the mandamus petition within 10 days (from Thursday, May 21), while at the same time inviting the Justice Department to comment on the mandamus petition. Judge Sullivan is doubtless displeased that the only case the appellate court mentioned in its one page order is a 2016 ruling by the same court granting a writ of mandamus against a district judge who refused to dismiss a prosecution because the judge thought the Justice Department was letting the defendant off too easily.

The Flynn mandamus petition is an extraordinary document, fitting for the extraordinary set of circumstances giving rise to it, and appropriate to the extraordinarily contentious times in which we live. For some years now we have lived in a media and political world where opinions are ubiquitous, the truth is a matter of opinion, and actual facts are simply background noise no less malleable than opinions. I, for one, am hoping that the judiciary will prove to be the one place in our pantheon of government institutions where the facts still matter and where judicial outcomes expressed in opinions are based on the application of objective law to objective or at least observable facts.

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