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Judge asks full appeals court to review panel's dismissal of Flynn case

09 July 2020
 Dan Ackermann

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.

Transcripts show George Floyd told police "I can't breathe" over 20 times

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Newly released transcripts of bodycam footage from the Minneapolis Police Department show that George Floyd told officers he could not breathe more than 20 times in the moments leading up to his death.

Why it matters: Floyd's killing sparked a national wave of Black Lives Matter protests and an ongoing reckoning over systemic racism in the United States. The transcripts "offer one the most thorough and dramatic accounts" before Floyd's death, The New York Times writes.

The state of play: The transcripts were released as former officer Thomas Lane seeks to have the charges that he aided in Floyd's death thrown out in court, per the Times. He is one of four officers who have been charged.

  • The filings also include a 60-page transcript of an interview with Lane. He said he "felt maybe that something was going on" when asked if he believed that Floyd was having a medical emergency at the time.

What the transcripts say:

  • Floyd told the officers he was claustrophobic as they tried to get him into the squad car.
  • The transcripts also show Floyd saying, "Momma, I love you. Tell my kids I love them. I'm dead."
  • Former officer Derek Chauvin, who had his knee on Floyd's neck for over eight minutes, told Floyd, "Then stop talking, stop yelling, it takes a heck of a lot of oxygen to talk."

Read the transcripts via DocumentCloud.