Photo: Alex Wroblewski/Getty Images

D.C. District Judge Emmet Sullivan on Thursday petitioned for the full D.C. Court of Appeals to rehear a three-judge panel's decision to order the dismissal of the case against former national security adviser Michael Flynn.

Why it matters: The panel's 2-1 decision could be overturned by the full 11-judge appeals court if it decides to take up the en banc review.

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.

  • Judge 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.

The appeals panel's majority opinion, authored by Trump appointee Neomi Rao, argued: "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."

What they're saying:

Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold. All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion. Outside the panel opinion, those actions have not been considered inappropriate—much less an extreme separation-of-powers violation justifying mandamus.
— Judge Sullivan in his petition for en banc review

Read the full petition via DocumentCloud.

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