MESSAGE
| DATE | 2020-06-12 |
| FROM | Ruben Safir
|
| SUBJECT | Subject: [Hangout - NYLXS] say what?? Judge asks if Michael Flynn dismissal
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Judge asks if Michael Flynn dismissal is good for racist police
By Steven Nelson
June 12, 2020 | 3:55pm | Updated
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Michael Flynn
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A federal appeals court judge repeatedly asked Friday whether dropping
the case against former national security adviser Michael Flynn would
mean police can escape accountability for brutalizing black people.
DC Circuit Judge Robert Wilkins raised the possibility as Flynn’s
attorneys and the Justice Department pleaded with a skeptical
three-judge panel to order US District Judge Emmet Sullivan to dismiss
Flynn’s case and his 2017 guilty plea for lying to the FBI.
Wilkins, an African American Harvard Law School graduate, asked whether
dismissing Flynn’s case would mean that judges must also dismiss cases
against police if prosecutors offer racist reasons.
“Even if the prosecutor was dismissing the case because it did not
believe that a white police officer should have to answer for using
excessive force on a black defendant, and they say that in their
pleading, under Rule 48(a) the district court still has to grant the
motion?” Wilkins asked Deputy Solicitor General Jeffrey Wall.
Wall agreed, “I don’t think that the court can force the executive to
keep that case alive in the absence of a case or controversy.” He added,
however, that the “unconstitutional motive” distinguishes the scenarios.
The judge, nominated by President Barack Obama, presented the
hypothetical in the wake of national unrest this week over the killing
of George Floyd by Minnesota policeman Derek Chauvin, who kneeled on his
neck for nearly nine minutes. Chauvin, since fired, faces second-degree
murder charges and three colleagues, also fired, are charged with aiding
and abetting murder.
The Justice Department sought last month to drop its case against Flynn,
who pleaded guilty to lying about calls with Russia’s ambassador. But
Sullivan instead appointed ex-Judge John Gleeson to oppose the motion.
In a filing this week, Gleeson argued the Flynn case would be dropped
“based solely on the fact that Flynn is a political ally of President
Trump” and that Flynn, who faces up to five years in prison, should be
sentenced.
The Justice Department says it wants to drop the case because of
investigative misconduct, including the lack of a valid basis for FBI
agents including Peter Strzok to interview Flynn when he allegedly lied.
Wilkins persisted with his police-misconduct hypothetical Friday, asking
the Justice Department rep why a judge couldn’t appoint an amicus
adviser — as Sullivan did — to create room for reconsideration.
“Why isn’t it the case that if the government makes a considered racist
decision that it just does not want to have a white officer stand trial
for excessive force on a black victim that the district court can deny
the motion — and then the political chips can fall where they may. And
perhaps under pressure from the public or Congress, or whatever, the
district court may not be able itself to force the government to
prosecute the case, but maybe through the operation of the legislative
branch or other pressures from the public and the media a new prosecutor
is appointed?” Wilkins asked.
The Justice Department lawyer replied: “Your question, I think,
recognizes the answer, which is as you say, there’s no power to make the
executive move forward to trial.”
The judge insisted: “But if the government can’t make the case go away
and the case is in limbo, then while it’s in limbo, pressure could be
brought to bear on the government to reconsider its decision, right?”
Wilkins found a warmer reception with attorney Beth Wilkinson, who
represented Sullivan.
“The government says … even if [a prosecutor] in a motion says we’re
moving to dismiss because we don’t want to prosecute this white
defendant for beating and using excessive force against a black victim,
that the court would still be compelled … to grant the motion to
dismiss,” Wilkins said.
“I strongly disagree with that,” Wilkinson said. “The case law … give
examples of where a court can move and deny a motion, which include
bribery. … If that police officer had pled guilty … could the court
sentence that defendant? I don’t know the answer to that question, but
there’s certainly a basis for the judge to deny the motion to dismiss.”
Circuit Judge Karen Henderson, an appointee of President George H.W.
Bush, made clear she leans toward allowing Sullivan to make a decision
on Flynn after a July 16 hearing.
“I don’t see why we don’t observe regular order and allow him to rule.
For all we know, he will say this amicus brief is over the top, the
dismissal motion is granted,” she said.
In pleading guilty to lying to the FBI, Flynn avoided charges for
admittedly working as an unregistered agent of Turkey and making false
statements to the Justice Department about that work. Flynn business
partner Bijan Rafiekian was convicted last year on those charges and
faced up to 15 years in prison before his conviction was overturned. The
Justice Department is moving to retry Rafiekian.
When he pleaded guilty, Flynn agreed to cooperate with special counsel
Robert Mueller’s investigation in exchange for a lighter sentence.
Mueller ultimately found no evidence that Trump colluded with Russia
during the 2016 campaign.
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