The New York Times - USA (2020-07-31)

A18 Y THE NEW YORK TIMES NATIONAL FRIDAY, JULY 31, 2020

WASHINGTON — The entire

Federal Appeals Court in Wash-

ington said on Thursday that it

would take up a case involving At-

torney General William P. Barr’s

decision to drop the prosecution of

President Trump’s former na-

tional security adviser Michael T.

Flynn, erasing a split decision by a

three-judge panel in June order-

ing an immediate end to the case.

A terse order from the Court of

Appeals for the District of Colum-

bia Circuit said that a majority of

its members had voted to vacate a

June 24 panel decision ordering

the immediate dismissal of the

case against Mr. Flynn, and set

oral arguments before the full

court for Aug. 11.

The move meant that the legal

and political saga over Mr. Flynn’s

case would continue. Mr. Barr’s in-

tervention in the case came after

an extraordinary public campaign

by Mr. Trump and his allies,

prompting accusations that the at-

torney general had ended the

prosecution of a presidential fa-

vorite for illegitimate political rea-

sons.

The trial judge overseeing the

matter, Emmet G. Sullivan, de-

cided to scrutinize the legitimacy

of that request, appointing an out-

side critic who portrayed Mr.

Barr’s move as corrupt and urged

the sentencing of Mr. Flynn, who

has twice pleaded guilty to lying to

F.B.I. agents about conversations

with a Russian ambassador. But

before the judge could hold a hear-

ing, Mr. Flynn’s legal team per-

suaded two of three judges on an

appeals court panel to order the

judge to dismiss the charges with-

out further review.

That panel ruling was a sur-

prise, and both of the judges in the

majority — Neomi Rao, a former

Trump White House official, and

Karen L. Henderson, a George

Bush appointee, have been more

willing in other cases than most of

their colleagues to interpret the

law in Mr. Trump’s favor.

A chief argument against their

intervention was that the situa-

tion did not qualify for the extraor-

dinary remedy of an immediate

order to the trial judge — a so-

called writ of mandamus — be-

cause an alternative was avail-

able: Judge Sullivan could be per-

mitted to make his decision in the

normal course, and if Mr. Flynn

did not like it, he could file an ap-

peal.

The unsigned order from the

full court signaled that the major-

ity of the judges who wanted to re-

hear the matter may be focused on

that argument. It stated: “The

parties should be prepared to ad-

dress whether there are ‘no other

adequate means to attain the re-

lief’ desired.”

Mr. Flynn, a former Army lieu-

tenant general, had been a top

aide to Mr. Trump during the 2016

campaign and was set to become

his national security adviser dur-

ing the transition after the elec-

tion when he had several phone

calls with the Russian ambassa-

dor to the United States at the

time, Sergey I. Kislyak.

The calls were picked up on a

wiretap targeting Mr. Kislyak, and

in the following weeks, it became

clear that Mr. Flynn was lying to

his colleagues in the incoming ad-

ministration about what was said

— including that he had asked the

Russian government not to esca-

late in response to sanctions im-

posed by the Obama administra-

tion for its 2016 election interfer-

ence, suggesting that the incom-

ing Trump administration could

work with Moscow.

Because of Mr. Flynn’s prior ties

to Russian officials, F.B.I. agents

had been scrutinizing him as part

of the early stage of the investiga-

tion into Russia’s election med-

dling and whether any Trump

campaign associates had con-

spired in that interference. But the

bureau had decided to close its file

on Mr. Flynn when his calls with

the ambassador and his lies to his

colleagues about them raised a

new reason to be suspicious.

The F.B.I. decided to question

Mr. Flynn about the calls to see

what he would say, and on Jan. 24,

2017, as the national security ad-

viser to the newly installed Presi-

dent Trump, Mr. Flynn provided

to two agents a false description of

his calls. Soon after, Mr. Trump

ousted him, saying it was because

he had lied to Vice President Mike

Pence about the calls.

The office of Robert S. Mueller

III, the special counsel later ap-

pointed to lead the Trump-Russia

investigation, eventually struck a

deal with Mr. Flynn’s original le-

gal team under which he would co-

operate and plead guilty to one

count of making a false statement

to resolve his legal liability both

for that interview and for failing to

register as a paid foreign agent of

Turkey in 2016 and then signing

forms in 2017 lying about the na-

ture of that work.

But over time, Mr. Flynn’s case

started to become a political cause

for Mr. Trump and his supporters.

Last year, Mr. Flynn changed le-

gal teams and ceased cooperating

with the Justice Department, and

this year, he sought to withdraw

his guilty plea. Mr. Barr then di-

rected prosecutors to ask the

judge to dismiss the case rather

than sentence him.

Mr. Flynn’s new defense lawyer,

Sidney Powell, had privately lob-

bied Mr. Barr to appoint an out-

sider to scour the case file for ma-

terial that could be used to accuse

investigators and prosecutors of

misconduct, engineering a similar

outcome to the department’s 2009

dismissal of a corruption case

against a senator after his convic-

tion.

Mr. Barr did so, and the depart-

ment has turned over to the de-

fense files showing that the F.B.I.

was aggressive when it inter-

viewed him, violating bureau-

cratic protocol by unilaterally

sending agents to talk to him even

though there were unresolved de-

liberations with Justice Depart-

ment leaders about how to do so

and whether to alert the White

House counsel.

Among other things, the depart-

ment also disclosed that the F.B.I.

had decided to close the inquiry

into Mr. Flynn before the issue of

his calls and his lies to colleagues

about them arose. Because the file

was still open, however, the F.B.I.

used it to question him.

Mr. Barr’s Justice Department,

while not embracing Ms. Powell’s

accusations that prosecutors

committed misconduct, argued

that the uncertain status of the

Flynn inquiry at the time agents

questioned him meant that Mr.

Flynn’s lies were not a crime be-

cause they were not connected to

a legitimate investigation.

In June, John Gleeson, a former

mafia prosecutor and retired

judge appointed by Judge Sulli-

van to critique the government’s

arguments, filed a scathing brief

contending that prosecutors’ ra-

tionale made no sense and must

be cover for a corrupt and politi-

cally motivated decision. The Jus-

tice Department disputed that

idea.

It has not been clear whether

Judge Sullivan agrees. He had

been set to hold a hearing on the

matter before the appeals court

panel voted last month to hold

that he had no authority to scruti-

nize the basis for Mr. Barr’s deci-

sion. The dissenting judge on the

panel accused his colleagues of

“grievously” overstepping their

authority, and Judge Sullivan ap-

pealed.

Appellate Court Erases

Dismissal of Flynn Case

By CHARLIE SAVAGE

Michael T. Flynn, President

Trump’s former national secu-

rity adviser, twice pleaded

guilty to lying to the F.B.I.

MANUEL BALCE CENETA/ASSOCIATED PRESS

request for comment. James Mar-

golin, a spokesman for the U.S. at-

torney’s office in Manhattan, said,

“We will let the office’s filing

speak for itself.”

Mr. Cohen, who once bragged

that he would take a bullet for Mr.

Trump, pleaded guilty in 2018 to

campaign finance violations and

other crimes.

When he entered his plea, Mr.

Cohen implicated the president,

telling the court that Mr. Trump

had directed him during the 2016

election to arrange hush-money

payments to two women who

claimed they had had affairs with

Mr. Trump. The president has de-

nied those allegations.

N.Y., will give a glimpse into his

“firsthand experiences with Mr.

Trump.”

In a lawsuit, Mr. Cohen said his

book would paint Mr. Trump as a

racist and offer revealing details

about “the president’s behavior

behind closed doors.”

“The narrative describes point-

edly certain anti-Semitic remarks

against prominent Jewish people

and virulently racist remarks

against such Black leaders as

President Barack Obama and Nel-

son Mandela,” the lawsuit said.

Mr. Cohen’s lawyer, E. Danya

Perry, declined to comment on

Thursday; the Bureau of Prisons

did not immediately respond to a

Michael D. Cohen now will be
allowed to finish his tell-all book
about President Trump after the
government said on Thursday
that it had given up a legal battle
to prevent him from expressing
himself on television, on social
media or in books while he serves
a prison sentence at home.
The government, writing to a
federal judge in Manhattan, said it
would not challenge a ruling last
week that cleared the way for Mr.
Cohen, who once was Mr. Trump’s
lawyer and fixer, to publish a
memoir about his former boss be-
fore the election.

The government said it had

agreed to omit a condition in Mr.

Cohen’s home-confinement agree-

ment that would have barred him

from any contact with the media,

including making posts on social

media, appearing on television or

publishing a book.

Federal prosecutors wrote to

the judge that the government

had agreed with Mr. Cohen’s law-

yers that “a specific provision” re-

garding Mr. Cohen’s “contact with

the media is not necessary.” They

also said they would not further

litigate or appeal the judge’s rul-

ing.

Mr. Cohen was let of out of pris-

on in May because of the coro-

navirus and was expected to

serve the rest of his three-year

sentence at home, but officials

sent him back to custody after he

balked at signing the agreement.

The judge, Alvin K. Hellerstein

of Federal District Court, ruled

last Thursday that the decision to

return Mr. Cohen to prison

amounted to retaliation by the

government and ordered him to

be released again into home con-

finement.

“I make the finding that the pur-

pose of transferring Mr. Cohen

from furlough and home confine-

ment to jail is retaliatory,” Judge

Hellerstein said. “And it’s retalia-

tory because of his desire to exer-

cise his First Amendment rights

to publish a book and to discuss

anything about the book or any-

thing else he wants on social me-

dia and with others.”

Mr. Cohen has said that his

book, which he had been working

on in the prison library while serv-

ing his sentence at a minimum-se-

curity prison camp in Otisville,

U.S. Backs Down in Battle to Stop President’s Former Fixer From Writing a Tell-All

By BENJAMIN WEISER

A judge found that the

government retaliated

over a lawyer’s book.

An undocumented immigrant
who worked for years at President
Trump’s luxury golf resort in New
Jersey and later revealed that he
employed many immigrants who
are in the country illegally has
been placed in deportation pro-
ceedings.
Victorina Morales, 47, worked
for more than five years as a
housekeeper at the club in Bed-
minster, N.J., using counterfeit
identification that she said her su-
pervisors knew to be falsified. Her
revelations, first disclosed by The
New York Times in December
2018, prompted undocumented
workers at several Trump proper-
ties to come forward.
Dozens of others were fired in
ensuing months by the Trump Or-
ganization, which owns and oper-
ates golf resorts in several states,
after the company began investi-
gating employee records.
Ms. Morales, a Guatemalan im-
migrant, was notified by the fed-
eral authorities this week that she
had been placed in removal pro-
ceedings that could result in de-
portation. She can remain in the
country only if an immigration
judge approves her petition for
asylum.
In a letter reviewed by The
Times, U.S. Citizenship and Immi-
gration Services said that the
agency had not approved her ini-
tial application for asylum be-
cause she had not proved that “ex-
traordinary circumstances” had
prevented her from making an
asylum claim within a year of ar-
riving in the country, as required.
Ms. Morales, who witnessed
her father being murdered,
crossed the border illegally in

1999. She filed the asylum applica-
      tion jointly with her husband late
      in 2018, and the latest decision ap-
      plied to both of them.
      The immigration agency em-
      phasized that it was not denying
      her asylum application but was in-
      stead referring her case to the im-
      migration courts for removal pro-
      ceedings, where a judge will re-
      view her asylum status.
      Because of the backlog in immi-
      gration cases, Ms. Morales almost
      certainly will be allowed to remain

in the United States for several

years while her case is under re-

view. She was not available for an

interview on Thursday.

Anibal Romero, her lawyer, said

that the agency’s ruling this week

“is a serious legal matter, and my

concern right now is for the safety

and well-being of my client.” He

said that he would have no other

comment.

After Ms. Morales arrived in

New Jersey, she worked at ware-

houses packing consumer goods,

such as soap and baby diapers.

She was hired at the Trump prop-

erty in 2013.

During her time at the golf re-

sort, she said, she often cleaned

Mr. Trump’s personal quarters

and had several interactions with

him. She said he had praised her

for her meticulous cleaning and

work ethic, at times dispensing

large tips to her.

But Ms. Morales said that she

had been hurt by Mr. Trump’s dis-

paraging public comments after

he took office about Latin Ameri-

can immigrants, equating them

with violent criminals.

It was that, she said, along with

what she said were abusive re-

marks from a supervisor at work

about her intelligence and her im-

migration status, that made her

decide that she could no longer

keep silent.

“We are tired of the abuse, the

insults, the way he talks about us

when he knows that we are here

helping him make money,” she

said at the time.

Ms. Morales was trained by

Sandra Diaz, a native of Costa

Rica who is now a legal resident of

the United States. Ms. Diaz also

came forward admitting that she

had been in the country without

legal permission while employed

at Bedminster.

Trump Organization executives

have said that they had no way of

knowing that the workers had

presented false employment doc-

uments, and Mr. Trump has said

that he was also unaware that his

properties had hired undocu-

mented immigrants.

During the presidential cam-

paign, when the Trump Interna-

tional Hotel opened in Washing-

ton, Mr. Trump boasted that he

used an electronic employment

system, E-Verify, to check that

only those legally authorized to

work there had been hired.

“We didn’t have one illegal im-

migrant on the job,” Trump said

then.

But throughout his campaign

and after he became president,

Ms. Morales had been reporting

for work at his golf course. A fel-

low employee drove her and other

undocumented workers to the re-

sort each day, she said, because it

was known that they could not le-

gally obtain driver’s licenses.

After coming forward, Ms. Mo-

rales shot to fame. In February

last year, she was among 20 immi-

grants, many of them facing possi-

ble deportation, on the list of those

seated in the secure gallery for the

annual State of the Union address.

In December, she visited Las Ve-

gas and received a hug from Jo-

seph R. Biden Jr., the presumptive

Democratic presidential nominee.

At a campaign event, she bran-

dished a copy of a certificate of

service that she had received from

the White House Communications

Agency.

After applying for asylum, Ms.

Morales received a work permit,

which enabled her to secure a

housekeeping job as a legal

worker at a hotel in Manhattan.

She lost that job because of the co-

ronavirus pandemic.

Among nearly 50 undocument-

ed workers identified as having

worked at Trump properties since

Ms. Morales’s revelations, none

are known to have been deported.

Ex-Housekeeper at Trump Club May Face Deportation

By MIRIAM JORDAN

Victorina Morales, an undocumented worker, sometimes

cleaned President Trump’s quarters at his Bedminster, N.J., club.

CHRISTOPHER GREGORY FOR THE NEW YORK TIMES

Six years after a white police of-
ficer shot and killed Michael
Brown, a Black teenager, in Fer-
guson, Mo., another investigation
into the killing has come to the
same conclusion as the first: The
officer should not be charged.
The officer, Darren Wilson, al-
ready had been cleared by a grand
jury and a federal investigation
months after the shooting in 2014.
But Thursday’s announcement by
a new prosecutor, Wesley Bell,
most likely marks the end of the
legal saga in a case that started
the global rise of the Black Lives
Matter movement, which has led
to some major shifts in American
policing and forced a renewed
conversation about racism.
“Can we prove beyond a reason-
able doubt that a crime oc-
curred?” Mr. Bell, the top prosecu-
tor in St. Louis County, said at a
news conference. “The answer to
that is no.”
The killing of Mr. Brown led to
intense protests in Ferguson, a
suburb of St. Louis, where scenes
of smashed windows, burning
buildings and upset protesters
choking in tear gas were seared
into the minds of Americans.
There were similar demonstra-
tions in several cities this year af-
ter the police killing of George
Floyd in Minneapolis, although
many of the nationwide rallies fea-
tured no vandalism or violence.
Mr. Brown was 18 and a recent
high school graduate when he got
into a confrontation with Mr. Wil-
son on a quiet residential road. A
struggle at Mr. Wilson’s police ve-
hicle turned into a street pursuit
that ended with Mr. Wilson fatally
shooting Mr. Brown. Witnesses
said Mr. Brown had his hands up
when he was shot — prompting
outrage and a protest rallying cry
— but federal and local investiga-
tors said the evidence suggested
otherwise.
“Although this case represents
one of the most significant mo-

ments in St. Louis’s history, the

question for this office was a sim-

ple one: Could we prove beyond a

reasonable doubt that when Dar-

ren Wilson shot Michael Brown he

committed murder or manslaugh-

ter under Missouri law?” Mr. Bell

said. “After an independent and

in-depth review of the evidence,

we cannot prove that he did.”

Mr. Bell said that although his

office could not prove that a crime

was committed, the investigation

did not exonerate Mr. Wilson, who

resigned months after the shoot-

ing. “There are so many points at

which Darren Wilson could have

handled the situation differently,

and if he had, Michael Brown

might still be alive,” he said.

Jim Towey, a lawyer for Mr. Wil-

son, said he and Mr. Wilson had

not known that Mr. Bell was for-

mally reviewing the case, al-

though they had assumed it was

possible because the prosecutor

pledged to do so while campaign-

ing for the job.

“Everybody that’s looked at the

case has come to the same conclu-

sion,” Mr. Towey said. “There was

not a crime and there should be no

prosecution.”

Even without a criminal pros-

ecution, Mr. Brown’s death

brought attention to police killings

of Black people. It also forced

many police departments to con-

sider new reforms, like making of-

ficers wear body cameras, and

other changes in the criminal jus-

tice system, like ending cash bail.

An investigation by the Justice

Department found that law en-

forcement in Ferguson regularly

violated the rights of Black peo-

ple, leading to changes in laws,

and how courts and cities operate.

Mr. Bell himself is a product of

the change brought on by Mr.

Brown’s death. Activists heavily

criticized the longtime prosecutor,

Robert McCulloch, who led the

grand jury process that resulted

in no indictment. Mr. Bell, who is

Black, unseated Mr. McCulloch in

the Democratic primary two

years ago as part of a nationwide

wave of reform-minded people of

color winning prosecutor races.

Ferguson elected its first Black

mayor, Ella Jones, this year.

But as Mr. Bell left the lectern

on Thursday, a man yelled at him,

saying he would be voted out and

criticizing his decision not to

charge Mr. Wilson.

Mr. Brown’s name — among

those of other Black people killed

by the police — was frequently

shouted by protesters or etched

onto cardboard signs during

weeks of recent protests that rap-

idly extended across the country

after Mr. Floyd was killed in May.

Those Black Lives Matter pro-

tests, which are continuing in

places like Portland, Ore., may

make up the largest protest move-

ment in United States history;

polls have indicated that 15 million

to 26 million people have taken

part in the demonstrations. Four

officers have been charged in Mr.

Floyd’s death, including one,

Derek Chauvin, who was charged

with murder.

Officer Won’t Be Charged in 2014 Brown Killing

By JOHN ELIGON

A memorial to Michael Brown, a Black 18-year-old shot by a white police officer in Ferguson, Mo.

TODD HEISLER/THE NEW YORK TIMES

Nicholas Bogel-Burroughs con-
tributed reporting.

BD