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Circuit Court Judge Taints Himself In Flynn Case Oral Argument: Injects Issue of Race and Police Misconduct Into A Case That Has Nothing To Do With Race or Police Misconduct

By: Shipwreckedcrew

This morning the United States Circuit Court of Appeals for the District of Columbia heard oral arguments on the Petition for Writ of Mandamus filed by Gen. Michael Flynn, seeking an order from the Appeals Court directed to District Judge Emmet Sullivan that he grant the motion by the Department of Justice to dismiss the case against him.

The oral argument had few surprises, and most of the questions from the judges and comments by counsel for the various sides were predictable from the briefs that had been filed ahead of the hearing.

But one member of the panel, Judge Robert Wilkins, posed a hypothetical to Jeffrey Wall, Deputy Solicitor General, which seemed unnecessarily “provocative” given the current climate in the country following the death of George Floyd while in police custody in Minneapolis on Memorial Day.

A transcript of the hearing is not yet available, so my recounting of the exchange here is based only on my notes and my memory after having listened to the argument live.

Dep. SG Wall was making an argument about the extent of a district judge’s discretion to examine the motives and decision-making of the government when making a motion to dismiss under Rule 48(a), and what types of issues would be appropriately subject to judicial scrutiny such that a district judge could deny the motion as being motivated by objectionable reasons.

Dep. SG Wall’s argument was, that in the context of an unopposed motion – both sides agreeing to the dismissal – there is not legitimate basis for a district court to conduct any inquiry into the motives behind the government’s motion to dismiss.   Following that up, Judge Wilkins referenced a Supreme Court decision that suggested there was room for such an inquiry, making reference to United States v. Armstrong, which involved a claim by African-American defendants charged with distributing crack cocaine who alleged that they had been targeted for prosecution by the DOJ because of their race.

Dep. SG Wall acknowledged the Armstrong case, and that it allowed for judicial inquiry into the basis for the Executive Branch’s charging decisions when there was sufficient evidence that unconstitutional considerations might be behind such decision-making.  But,  Dep. SG Wall noted that this case involved no such factors, and as such the decision in Armstrong did not support the kind of inquiry that Judge Sullivan proposed in connection with the DOJ motion to dismiss the case against Gen. Flynn.

Dep. SG Wall pointed to the explanation provided for the motion to dismiss that was set forth in great detail by DOJ in their motion.

Judge Wilkins then proposed a hypothetical for Deg. SG Wall to consider.  He said (paraphrasing) “suppose that there was a pending criminal case filed against a white police officer for having committed acts of police brutality against a black suspect. Suppose that after that police officer had pled guilty, DOJ made a motion to dismiss the case which set forth only neutral reasons for wanting to do so, but in actuality, there was other information known to the district judge at the time. Suppose that the motivation for the motion to dismiss was simply a view that a white police officer should not have to answer for having committed acts of police brutality against a black suspect.  Under that hypothetical, would the district court be prohibited from inquiring of DOJ about that kind of motivation if it was behind the move to dismiss, or would the district court judge be required to dismiss based on the neutral reasons stated in the motion?”

I’ll deal with what should have been the proper response in just a moment, but I want to call attention here to the outrageous nature of this hypothetical being injected into the Flynn case, especially in the immediate aftermath of the death of George Floyd, an African-American man, while being arrested by members of the Minneapolis Police Dept., the most prominent of which was a white police officer.

The Flynn case has no aspect of race or police misconduct involved.  The circumstances set forth by Judge Wilkins in his hypothetical could have just as easily have been made by using some other constitutionally suspect classification, like religion.

With the events of the past three weeks, to link in a hypothetical the Department of Justice with a sentiment that a “white police officer should not have to answer for acts of police brutality against a black suspect” is simply beyond the pale.  Judge Wilkins is either completely tone-deaf to the implications presented by his question, especially given recent events, or he was purposely race-baiting the Dep. SG by presenting the hypothetical in the manner he did.

Hypothetical questions are the “stock-in-trade” of Appeals Court Judges, in that their purpose is to push the parties to examine the extreme edges of the arguments they are advancing.  How far does the principle they are arguing extend?  Would it cover even more extreme circumstances, such as the one presented by the case, and if so, does that have implications in other areas? Questions are useful tools to “flesh out” implications of arguments advance that aren’t always obvious from first glance.

However, Judge Wilkins’s selection of facts for his hypothetical were outrageous.  He unnecessarily injected race and police misconduct into a case being watched (for political reasons) across the country, and over which the country is divided along political lines. This in many ways reflects divisions in the country over the protests/rioting/looting that have taken place in the aftermath of George Floyd’s death.

Judge Wilkins was appointed as a federal district court judge in 2010 by President Barack Obama, and he was elevated to the District of Columbia Court of Appeals by President Obama in 2014.  Judge Wilkins himself is African-American.  The incendiary nature of his question was certainly not lost upon him, and he returned to this same hypothetical multiple times in seeking answers to questions.

What should the answer have been?  Having had much more time that Dep. SG Wall had to ponder the question, the answer is obvious to me.  I think Dep. SG Wall was likely surprised that Judge Wilkins would pose such an inapposite hypothetical, and struggled a bit to swipe it away.

The easy answer is that in United States v. Armstrong, the Supreme Court recognized the existence of a legitimate avenue of inquiry, because the allegedly unconstitutional action of targeting individuals for criminal prosecution based on their race would be a violation of the individuals due process and equal protection rights under the Constitution.  If true, the DOJ would be putting people in jail for long periods of time based on the color of their skin, and THAT can never be sanctioned by the Judiciary. Such “charging decisions” are beyond the ability of court’s to review.  And such review, is for the purpose of protecting the rights of persons whose liberty is being threatened, and insuring that the threat is not motivated by their race.

Judge Wilkins’s hypothetical presents a very different question.  In the hypothetical no one is being threatened with imprisonment by the government because of his race – making it different from Armstrong.   The decision sought to be reviewed is whether a prosecution should be dropped, not whether a prosecution should be started or continued on racial grounds.

The individual who might be “prejudiced” by a dismissal based on racial considerations is the victim, not the suspect.  The constitutional protections afforded by due process and equal protection do not apply to victims – rightly or wrongly – they only apply to the accused.  The accused’s liberty is at stake, not the liberty of the victim.

Dep. SG Wall was correct to say that a district court would have other options available to address the outrageous facts presented by Judge Wilkins’s hypothetical.  A court could dismiss other cases as a sanction, where continued prosecution of those cases would be inconsistent with the government’s decision to dismiss the case against the white police officer.

But the ultimate remedy for such outrageous conduct by an executive lies at the ballot box, as the executive is answerable to the voters for such decisions.

Judge Wilkins needless injection of race and police misconduct into a case which involved neither took an otherwise enlightening and “entertaining” 90 minute session and coated with a layer of unnecessary ugliness.

Shipwreckedcrew has 22 years as federal prosecutor; six years in private practice. Follow on Twitter @shipwreckedcrew