A Constitutional Crisis Is Near

Constitutional crisis: constitutional crises arise mainly when: (1) politicians and/or military officials announce they will not obey the constitution, for example by defying a court order, or (2) when many people refuse to obey the constitution, and there can are street riots or the military mobilizes, or, states or regions try to secede from the nation, which involves situations where publicly articulated disagreements about the constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests and brute force is used or threatened.

Constitutional rot: constitutional rot occurs when norms that held power in check fall, partisans play constitutional hardball, e.g., the Senate refusing to consider a valid Supreme Court nomination, fair political competition comes under attack and state power becomes less accountable and responsive to the public.

A few days ago a B&B discussion focused on the difference between a constitutional crisis and constitutional rot. It is clear that America has been in constitutional rot at least since the mid-1990s. As of the close of business yesterday, American politics appears to have crossed the line from constitutional rot to a true constitutional crisis.

A few weeks ago, the federal judge handling the Michael Flynn case, Emmet Sullivan, ordered public release of some withheld materials in the Flynn prosecution. That included the transcript of a phone call by Trump lawyer John Dowd to one of Flynn's attorneys. That call showed witness tampering by Dowd, a felony, in an attempt to keep Flynn from cooperating with witnesses. That transcript was released yesterday as ordered.

However, the Washington Post and other sources report that the Justice Department did not publicly file the transcripts of Flynn’s calls with Russian officials, including then-Russian ambassador Sergey Kislyak. The DoJ also refused to make public redacted portions of the Mueller report that pertains to Flynn. It is reasonable to believe that those transcripts and portions of the Mueller report contain evidence of Flynn illegally conspiring with Russia to advance Russian policy goals, lying under oath or committing other felonies.

The WaPo writes: "Prosecutors provided one item that Sullivan ordered be released: a transcript of a voice mail left by an attorney for Trump, much of which had already appeared in Mueller’s report. It is unclear how the judge will react to the government’s noncompliance with other elements of his order. Late last year, Sullivan postponed Flynn’s sentencing after angrily lambasting the former national security adviser for his actions, saying, 'Arguably, you sold your country out.'"

Refusal to release those materials is an obvious refusal to obey a valid court order. That constitutes a constitutional crisis or something very close to it. How Judge Sullivan reacts to this will probably be known soon and that could dictate what the constitutional situation actually is. The judge could hold prosecutors and maybe also Attorney General William Barr in contempt and have them jailed until they comply.

Suppressed evidence that is coming to light continues to show claims of innocence and exoneration are lies by Trump, Barr and other people with knowledge of the facts who make the same false claims. Trump and everyone involved is lying. One can only hope that Sullivan orders Barr and the involved prosecutors to go to jail. They deserve no less.

Looking back, this day had to come. Trump's contempt for the rule of law and for norms that make our democracy work has been clear from before the 2016 elections. Trump is truly making his run at building some sort of a kleptocratic tyranny-Christian theocracy and suppressing democracy, the rule of law and civil liberties. People who support and enable this evil can not in good faith deny this is happening or that it is evil. There is no excuse to support Trump except if one wants to eliminate liberal democracy and install a corrupt, anti-democratic tyrant.

Orig B&B: 6/1/19