#Judge asks if Michael Flynn dismissal is good for racist police

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 repeatedly whether judges must dismiss a case if prosecutors cited racist motives.

“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 former 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 knelt on his neck nearly nine minutes until he died. Since-fired Chauvin faces second-degree murder charges and three colleagues 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 Judge 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 Judge 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 Republican President George HW 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 faces up to 15 years in prison.

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.