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Photo: Aaron P. Bernstein/Getty Images

The D.C. Circuit Court of Appeals said in a 2-1 ruling on Wednesday that the federal judge overseeing the sentencing of former national security adviser Michael Flynn must accept the Justice Department's request to drop charges.

Why it matters: It could mark the end of a long-running legal fight that began with Flynn pleading guilty to lying to the FBI in December 2017 about his contacts with the Russian ambassador during the Trump administration's transition into office.

The backdrop: The Justice Department under Attorney General Bill Barr moved to dismiss the charges against Flynn in May, following a review that alleged prosecutorial misconduct by the FBI agents who had interviewed Flynn.

  • D.C. District Judge Emmet Sullivan pumped the brakes on the case and sought to hear from outside parties on whether he should accept the government's motion.
  • Flynn's lawyers subsequently asked the D.C. Circuit Court of Appeals to order Judge Sullivan to drop the case.
  • In the meantime, an ex-judge appointed by Sullivan to review the case issued a scathing brief alleging that Flynn committed perjury and accusing the DOJ of a "corrupt, politically motivated" dismissal.

Worth noting: The majority opinion was written by Circuit Judge Neomi Rao, who was appointed in November 2018 to fill the seat vacated by Supreme Court Justice Brett Kavanaugh.

What's next: Sullivan could ask the full D.C. Court of Appeals to vote whether to rehear the panel decision.

What they're saying:

Because legal errors ordinarily may be corrected on appeal, a writ of mandamus is proper only if there is “no other adequate means to attain … relief.” Although “an abstract concern with the separation of powers,” does not rise to the level of an irreparable injury, we have found the requisite harm as a matter of course when a party alleges the district court’s action usurps a specific executive power.
In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal.
— Majority opinion

Read the full opinion via DocumentCloud.

Go deeper

Sep 29, 2020 - Politics & Policy

Appeals court upholds six-day extension for counting Wisconsin ballots

Photo: Derek R. Henkle/AFP via Getty Images

A federal appeals court on Tuesday upheld a lower court ruling that extended the deadline for counting mail-in ballots in Wisconsin until Nov. 9 as long as they are postmarked by the Nov. 3 election, AP reports.

Why it matters: It's a big win for Democrats that also means that the winner of Wisconsin, a key presidential swing state, may not be known for six days after the election. Republicans are likely to appeal the ruling to the Supreme Court, as the Pennsylvania GOP did after a similar ruling on Monday.

Go deeper: How the Supreme Court could decide the election

Off the Rails

Episode 2: Barbarians at the Oval

Photo illustration: Sarah Grillo/Axios. Photo: Jim Watson/AFP/Getty Images

Beginning on election night 2020 and continuing through his final days in office, Donald Trump unraveled and dragged America with him, to the point that his followers sacked the U.S. Capitol with two weeks left in his term. This Axios series takes you inside the collapse of a president.

Episode 2: Trump stops buying what his professional staff are telling him, and increasingly turns to radical voices telling him what he wants to hear.

President Trump plunked down in an armchair in the White House residence, still dressed from his golf game — navy fleece, black pants, white MAGA cap. It was Saturday, Nov. 7. The networks had just called the election for Joe Biden.

Fringe right plots new attacks out of sight

Illustration: Aïda Amer/Axios

Domestic extremists are using obscure and private corners of the internet to plot new attacks ahead of Inauguration Day. Their plans are also hidden in plain sight, buried in podcasts and online video platforms.

Why it matters: Because law enforcement was caught flat-footed during last week's Capitol siege, researchers and intelligence agencies are paying more attention to online threats that could turn into real-world violence.