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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.

Go deeper

Oct 14, 2020 - Health

Republicans' Supreme Court message: Don't worry about the ACA

Photo: Jim Lo Scalzo-Pool/Getty Images

Health care was by far the dominant issue in the Senate Judiciary Committee’s confirmation hearing yesterday for Judge Amy Coney Barrett.

The big picture: After promising for 10 years to get rid of the Affordable Care Act, and with a lawsuit pending at the Supreme Court that could do exactly that, Republicans are making a new argument: c’mon, nobody’s getting rid of the Affordable Care Act.

Updated Oct 13, 2020 - Politics & Policy

Supreme Court allows Trump administration to halt census count

Photo: Xinhua/Liu Jie via Getty Images

The Supreme Court on Tuesday approved the Trump administration's emergency application to stop census field operations early while litigation over the once-a-decade count continues in the 9th Circuit Court of Appeals.

Why it matters: Civil rights groups fear that cutting off field operations now could lead to an undercount, which would affect how congressional seats are reapportioned.

DOJ says Trump's tweets "declassifying" Russia documents are not orders

llustration: Rebecca Zisser/Axios

Attorneys from the Department of Justice argued in court on Tuesday that President Trump's tweets authorizing the "total declassification of any & all documents" related to the Russia investigation and Hillary Clinton's emails should not be considered real declassification orders.

Why it matters: BuzzFeed News reporter Jason Leopold cited the tweets in an emergency motion last week seeking to gain access to special counsel Robert Mueller's unredacted report as part of a Freedom of Information Act request.