Non-MAGA Republicans, be they George Conway–style “Never Trumpers” or Mitt Romney–style conservatives who support 90 percent of Trump’s policies but don’t like wearing hats, like to try to distance themselves from the most brazen lawlessness of the Trump regime. They furrow their brows or snark at the president on Twitter when he or one of his henchmen lies or commits crimes.
But those Republicans, the seemingly well-meaning ones, are never there to support the rule of law when their support could make a difference. They only show up after the fact: after the laws have been broken or ignored, after Trump’s henchmen are in positions from which they can do real damage. When Trump nominates these people—people who will only help him avoid or evade the law—these so-called “good” Republicans are nowhere to be found.
Michael Flynn, William Barr, and Neomi Rao (the Clarence Thomas acolyte plucked to fill Brett Kavanaugh’s seat on the D.C. court of appeals) are all part of the same rot. They all believe that achieving the supremacy of the Republican agenda justifies any means—including deceit and corruption. Now that those three have conspired to vitiate the rule of law, Never Trumpers appear concerned, again. But the prominent Republicans who are concerned today said nothing when these obvious bad actors were nominated to their positions.
The consequences of allowing these particular people to gain power are now evident. Michael Flynn lied to FBI investigators about his conversations with Russian ambassador Sergey Kislyak. I know that to be true, because Flynn admitted to lying and took a plea deal. People who lie to the FBI are supposed to go to jail.
But after Barr helped to short-circuit the Robert Mueller investigation, Flynn withdrew his plea deal. Normally, withdrawing a guilty plea causes prosecutors to rain down hellfire: The legal system doesn’t function well when people go back on their plea deals. But Barr went in the opposite direction and decided to drop the government’s case against Flynn. It was a corrupt move, and district court judge Emmet Sullivan demanded briefing and an explanation from the government for its decision to not prosecute an admitted liar. Sullivan refused to dismiss the case against Flynn until the government provided a non-corrupt reason for dismissing the case.
Yesterday, Sullivan’s request for more information was overruled by a three-judge panel on the US Court of Appeals for the D.C. Circuit. Neomi Rao wrote the decision for the majority (which included judge Karen Henderson, a George W. Bush appointee). Her ruling is unprecedented: She has essentially ordered Judge Sullivan to rule that Flynn should win his motion to dismiss before Judge Sullivan has issued a ruling on the motion. It’s like Rao handed out a speeding ticket to somebody sitting in a parked car because she didn’t like the way they turned on the engine.
Rao’s decision is not grounded in legal precedent. She dismissed the core of Judge Sullivan’s argument in a footnote reference to a legal treatise, not an actual court case. That would be like somebody citing this article as “evidence” that it’s legal to place Rao on an ice floe and set her adrift (Russia, if you’re listening…). Her entire opinion is written for an audience of one: Donald Trump. Rao knows that Ruth Bader Ginsburg is 87 years old, and Rao wants her job. This opinion is an open audition for a nomination to the Supreme Court, should an opening become available.
The opinion is gross and, frankly, a little cloying and desperate, but totally on-brand for Rao. She exists to put Trump’s worst impulses and arguments in legalese, as if she’s one of his defense attorneys instead of an actual judge. Rao, it’s worth remembering, was the lone dissenting vote in the Trump taxes case (now before the Supreme Court) and wrote an opinion that was so extreme that one of her fellow judges warned that it would “reorder the very structure of the Constitution.” The only way that dissent could have sounded more Trumpian was if she had shouted it while mispronouncing common words.
Anybody paying attention to Rao’s career could have seen her opinion in the Flynn case coming.
In fact, many people did see it coming. Sheldon Whitehouse, Democratic Senator from Rhode Island, knew how Rao would rule, and why. As soon as Rao was named to the panel that would hear this case, Whitehouse tweeted:
Where you see Neomi Rao, you can expect a lot of Trumpy dirt to follow. She’s a cartoon of a fake judge. Watch this space.
Whitehouse tweeted that out a month ago. You’d think that by May 2020, everybody would have figured out what Whitehouse saw so clearly. But check out some of the replies Whitehouse received to that tweet. Brother got ratioed. Republican after Republican (and some “institutionalist” Democrats) criticized Whitehouse for saying something that anybody honest should say about any case assigned to Rao. She has never hidden the ball on her radical, anti-Democratic views. But somehow, critics took issue with Whitehouse’s mere attempt to point out the cartoon villainy of her judicial approach, not with Rao’s “Look at me, Donald. It’s all for you!” modus operandi.
The mendacity of Flynn, Barr, and Rao was obvious before they got their jobs, but the moderate Republican wing did not join the effort to stop them from getting those jobs in the first place. These same Republicans were of no help when Trump announced Flynn’s appointment as national security adviser, despite his clear conflicts of interest and the fact that he was drummed out of his post as head of the Defense Intelligence Agency during the Obama administration.
William Barr was confirmed as attorney general with 51 Republican votes (and three Democrats, because we live in hell), despite his history of pardoning people responsible for the Iran/Contra scandal and his open letter all but promising to prematurely end Robert Mueller’s investigation.
Neomi Rao was confirmed to the US Court of Appeals for the D.C. Circuit with 53 Republican votes (no Democrats this time), despite her radical intellectual record as a date-rape apologist and executive-power sycophant. Rao supports dwarf-tossing. If you can’t get Never Trump Republicans to stand against a person who is in favor of throwing other human beings for sport, then what good are Never Trump Republicans?
We are where we are because allegedly good people “on both sides” continue to give Republicans the benefit of the doubt, despite all evidence that they don’t deserve it. Delivering conservative judges is one of the things that so-called good Republicans have sacrificed everything else to achieve. Yesterday the Senate confirmed Trump’s 200th federal judge, Cory Wilson, a guy who’s called the Affordable Care Act “illegitimate” and “perverse” and thinks voter suppression laws are a good way to go. Only one Republican voted against him, and none of the Never Trump talking heads raised a fuss about him.
When will people learn? You can’t stop the Neomi Raos of the world after they’ve been gifted lifetime appointments. You can’t fight a person like Bill Barr after he’s in power. The FBI and all the federal prosecutors work for him now. What the hell are we supposed to do, dress up like a bat and punch corruption in the face?
The only way to stop these people is to prevent them from getting their grubby Republican hands on the levers of power in the first place. But there are never enough people around willing to have that fight when it matters.
And so the cycle will continue. Democrats are now mobilizing to block Jay Clayton, Trump’s apparent pick to replace Geoffrey Berman as the head prosecutor in the Southern District of New York, which has jurisdiction over Trump’s family business. Clayton and Trump are reportedly golfing buddies. Democrats are doing what they can do from their position in the minority, but the Republican legal establishment once again refuses to stand up for the rule of law. In an interview with Politico, Federalist Society law professor J.W. Verret defended Clayton’s appointment: “Either Clayton works it out with Schumer to recuse from Trump-related cases, or Clayton withdraws. Either way I have faith in Jay’s moral compass will keep him out of trouble.”
The Republican moral compass is always broken. It only points the way toward more power. And by the time the best of them get around to trying to fix their compass, it’s always too late.