Judge Aileen Cannon is a Heroine

She is scheduled on June 21st to hear oral argument on whether special counsel Jack Smith was unconstitutionally appointed

The liberal news media is full of false stories about how Judge Aileen Cannon of the United States District Court for the Southern District of Florida has delayed former President Donald Trump's trial unnecessarily for allegedly mishandling classified documents. But, in fact, the Biden Administration and its Attorney General, Merrick Garland, are themselves to blame for the current delay. Special Counsel Jack Smith claims to be an inferior officer of the United States, but in fact he holds no such office. Smith is a mere employee of the Department of Justice, and he lacks the power to initiate prosecutions. Lucia v. Securities and Exchange Commission, 585 U.S. __ (2018) holds that only officers of the United States can take actions that affect the life, liberty, and property of citizens.

Judge Cannon has asked for oral argument on June 21, 2024 on former President Donald Trump's motion to dismiss Special Counsel Jack Smith's indictment on the ground that Smith was unconstitutionally appointed to his current job because he is not an inferior officer. Washington, D.C. super-lawyer, Gene Schaerr, has filed an amicus brief in United States v. Trump on behalf of former Attorney Generals Edwin Meese III and Michael B. Mukasey, as well as me and Professor Gary Lawson, arguing that Jack Smith was unconstitutionally appointed to be an inferior officer, and Judge Cannon has asked Gene Schaerr to participate in the oral argument, which he has agreed to do.

The Appointment Clause of Article II, Section 2 provides that: "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Jack Smith claims to be an inferior officer of the United States appointed by the Head of the Justice Department, but he is instead a mere employee.

We argue in our amicus brief that Congress has never by law vested in the Attorney General as the Head of a Department the power to appoint inferior officers even though Congress has explicitly vested that power in the Heads of the Departments of Energy, Health and Human Services, Transportation, and Agriculture. The only power, which Congress has given to the Attorney General is the power to make a sitting U.S. Attorney a Special Counsel with jurisdiction to prosecute cases nationwide and outside his or her home district. Thus, the Delaware U.S. Attorney, David C. Weiss, currently has nationwide jurisdiction to investigate and prosecute Hunter Biden as a Special Counsel, and this appointment is completely constitutional. Similarly, former U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, was quite legitimately given nationwide jurisdiction to prosecute former Vice President Dick Cheney's Chief of Staff, Scooter Libby, in Washington, D.C. Fitzgerald got Libby convicted and sentenced to time in jail.

Jack Smith, however, was a private citizen, and not a sitting U.S. Attorney, when Attorney General Merrick Garland named him to be the Special Counsel who would investigate and prosecute Donald Trump. Smith's appointment as an inferior officer was thus unconstitutional, and therefore the cases against former President Donald Trump, which Smith is prosecuting in Florida and in Washington D.C. must be dismissed. Again, Congress has never by law vested in the Attorney General the power to appoint inferior officers

The 92 U.S. Attorneys are all superior officers who must be nominated by the President and confirmed by the Senate. This requirement of Senate confirmation of U.S. Attorneys has been a part of our law since the Judiciary Act of 1789—i.e. for 235 years. It is, to say the least, implausible that Congress would require Senate confirmation of the U.S. Attorney for Wyoming but not of a Special Counsel who is prosecuting a former and possibly future President in both Florida and Washington, D.C.

Senators have deliberately decided not to give Attorneys General the power to appoint inferior officers with power to initiate a prosecution because they want to have a say in the confirmation process over who can prosecute cases in their home states. If the Attorney General has the power to appoint prosecutors without Senate confirmation think of what he might do with that power in corrupt places like Cook Country, Illinois or New Orleans, Louisiana. No wonder the Senate grants to the Heads of four other Cabinet Departments the power to appoint inferior officers while denying that power to the Attorney General.

Former Attorney General Robert Jackson said in a December 1, 1940 speech at the Conference of U.S. Attorneys that:

"It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. ***

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor."

Thank God Judge Cannon has scheduled oral argument on President Trump's motion to dismiss Jack Smith's prosecution of Trump for misuse of classified documents by a Justice Department employee who has not been nominated by the President and confirmed by the Senate. The judge should dismiss Smith's case, and the Eleventh Circuit, and the U.S. Supreme Court should affirm that dismissal.

If, at that point, Attorney General Garland still wants Trump's alleged misuse of classified documents investigated, as did not happen with former Obama Secretary of State, Hillary Clinton, then Attorney General Garland should follow the law and ask one of the 92 sitting, Senate-confirmed U.S. Attorneys to conduct any investigation that occurs. Attorney General Garland's failure to follow the law and the Constitution is a national disgrace. Judge Cannon should get a national round of applause.

Comments

[NvEric]

Expose the facts of the prosecutions machinations in this despicable attack on our Democracy.

[Dr. Ed 2]

Impeach everyone!

[Noscitur a sociis]

The 92 U.S. Attorneys are all superior officers who must be nominated by the President and confirmed by the Senate.

They are not.

This requirement of Senate confirmation of U.S. Attorneys has been a part of our law since the Judiciary Act of 1789—i.e. for 235 years.

This “requirement” is not part of our law right now.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL so Wikipedia is as good a source as I can find.

United States attorneys are officials of the U.S. Department of Justice who serve as the chief federal law enforcement officers in each of the 94 U.S. federal judicial districts. Each U.S. attorney serves as the United States’ chief federal criminal prosecutor in their judicial district and represents the U.S. federal government in civil litigation in federal and state court within their geographic jurisdiction. U.S. attorneys must be nominated by the president and confirmed by the Senate, after which they serve four-year terms.

Whether 92 or 94, Wikipedia is on his side, not yours.

Later it refers to 28 U.S.C. § 546 regarding dismissal and § 541 regarding appointment.

[Drewski]

Wikipedia is useful for some things, but is probably the worst source of legal information this side of Reddit. Law articles on Wikipedia are almost universally terrible and wrong. Anyway, there are 93 USAs for 94 districts, a fact easily found from official sources. One USA covers both Guam and Northern Mariana.

[Lee Moore]

I agree they’re not superior (aka “principal”) officers, they’re inferior officers. We know this because there are a number of temporary US Attorneys currently serving, following appointment by US District Courts. From which we can deduce that Congress must have vested the appointment of such animals in the Courts of Law.

Whether Congress has also vested the appointment of US Attorneys in the Head of Department (aka the Attorney General) I cannot say. We need a statutory reference, which no doubt Mr Smith will provide (or has already provided) in his own brief.

[Michael P]

Edmond v. United States, 520 U.S. 651 (1997), held:

Generally speaking, “inferior officers” are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the Senate’s advice and consent.

Which officer directs and supervises a U.S. Attorney for a given district?

[Magister]

The Attorney General?

[Michael P]

Checking statutes, yes, you’re right. I was under the impression that they have general autonomy, but 28 U.S. Code § 509 says otherwise.

[Armchair]

There’s a reasonable argument to be made that these “temporary” US Attorneys are merely “acting” and not official, so are limited in some respects.

Let’s give an example. Matthew Whitaker takes over as Trump’s “acting” AG after Jeff Sessions resigns. Whittaker is not confirmed by the Senate. The fact that Whittaker is temporarily AG does not mean that the law still requires the actual AG to be confirmed by the Senate. Whittaker was only acting AG for 4 months, before being replaced by William Barr (who was confirmed).

[Lee Moore]

Temporary acting appointments to existing statute-created offices are permitted by specific statutes. The President is given quite a lot of slack to appoint those.

That’s a different sport from the AG appointing acting officers.

I also have a feeling that there’s case law on the relevance of temporariness to officer status.

Anyway, I’m confident that the briefs and judgement will reveal all the inside baseball on the subject. Though if it gets to SCOTUS one must assume that the punter will be called for.

[bernard11]

Anyway, I’m confident that the briefs and judgement will reveal all the inside baseball on the subject. Though if it gets to SCOTUS one must assume that the punter will be called for.

Nice mix there, Lee, but isn’t the issue whether there was a technical foul?

[Lee Moore]

I’m not sure punting a baseball is that good an idea.
Might hurt a bit.

[Noscitur a sociis]

There’s a reasonable argument to be made that these “temporary” US Attorneys are merely “acting” and not official, so are limited in some respects.

There is not, in fact, a reasonable argument to that effect. U.S. Attorneys appointed by a district court under 28 U.S.C. § 546(d) are regular U.S. Attorneys who serve regular 4 year terms, just like presidentially-appointed ones.

[Lee Moore]

Is that right ? I thought the temps are statutorily time limited, whereas the Senate confirmed ones are indefinite appointments, though they tend to offer their resignations when a new President arrives, and he is then free to accept or reject their resignations.

Or indeed to reject their resignations and then fire ’em anyway, which I recall Trump did to some NY guy who got very upset about it.

But I am happy to be corrected.

[Armchair]

Really? Let us cite the law in question

“(d)If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court”

Note that wording… “Serve until the vacancy is fillled”.

What does that imply? That the US Attorney position is technically still open. And that someone is simply “serving” in the role, until it can be filled.

[Noscitur a sociis]

All U.S. Attorneys serve at the pleasure of the president, so all of them can be replaced by action of the senate whenever the president desires in exactly the same way.

[Armchair]

“All U.S. Attorneys serve at the pleasure of the president”

As noted above with the AG example, that’s true of almost every executive branch position the President appoints. (There may be isolated exceptions).

But like an acting AG (with the Whitaker case), the District Court appointed AGs are also in a pseudo-acting role.

[David Nieporent]

who serve regular 4 year terms,

Nitpick: although the statute of course does say that they serve 4-year terms, I think that’s a bit misleading language in the statute. The president serves a 4-year term. On 1/20/20xx, his term ends and he is no longer the president (barring reelection and/or insurrection). The position is vacant until filled by an elected or acting president. Similarly with 2- and 6-year terms for House and Senate members, respectively. When their terms are up on 1/3/20xx, they automatically go home.

But a USA stays on after his 4-year term “ends” until he is implicitly or explicitly removed by the president. (Implicitly, by the president nominating someone else and the senate confirming that person. Explicitly by the president firing him.) (Or, of course, he can resign.)

[Bruce Hayden]

Actually, I think that it works out that USAs could holdover, into the next Administration, at least by statute, if their four year term haven’t expired, but are firable, at will, by the President. So, most of them are typically given the opportunity/strong suggestion to resign by the incoming President, and very few do not oblige. Several Obama USAs (Preet Bharara, Geoffrey Berman), refused to resign after incoming Republican President Trump suggested /offered resignation. The USAs refused, were fired, and I believe, litigated and lost.

[Kazinski]

Right because Congress did allow the district courts the ability to appoint US Attorneys when there was an unfilled vacancy.

You might argue that violates separation of powers, but it clearly shows Congress didn’t want to give that power to the AG.

[Riva]

This “requirement” is not part of our law? Putting aside the question that the constitutional status, inferior or superior, of US Attorneys has not been definitively settled, Congress has not vested the AG with the power to appoint US attorneys, and that political hack Smith has far more authority than a US Attorney. So, sounds like the AG has no authority to appoint Smith. So no requirement? Rather no legal authority.

[Noscitur a sociis]

This “requirement” is not part of our law?

Right. Under certain circumstances, the attorney general can appoint U.S. Attorneys directly; under other circumstances a district court can.

[Riva]

Yeah, I am right, and you are in fact, wrong. Probably relying on Wikipedia. Or MSNBC. You’re referring to a temporary vacancy and time limited appointment under circumstances delineated by statute. Then there must be presidential appointment and senate confirmation. There is no independent counsel statute allowing district courts to appoint such counsels and there is no statute vesting the AG with any authority to appoint special counsels, inferior or otherwise.

[Noscitur a sociis]

Incorrect.

28 U.S.C. § 546(c) gives the attorney general authority to appoint a U.S. Attorneh directly if the senate hasn’t confirmed a presidential nominee for long enough. That appointment is only for a 120 day term, but during that time the appointee is a real (not acting) U.S. Attorney. If a presidential nominee hasn’t been confirmed, the district court can then make a regular appointment, for a regular four year term, under § 546(d).

[Riva]

Incorrect reasoning. As noted, a time limited AG appointment under circumstances proscribed by STATUTE. I maybe should have noted that the district court aspect is irrelevant, so I will now. But the point is, where is the STATUTE allowing the AG to appoint special counsel inferior officers (if they are just that)? The statute you reference only reinforces the argument that, constitutionally speaking, the AG is without any such authority absent a statute vesting this authority. So we go back to what I originally noted. The AG lacks any such authority to do so.

[Lee Moore]

I think you have got yourself confused.

Calabresi claimed that US Attorneys have to be Senate confirmed, and appointed by the President.

This is not correct, as Noscitur has explained. The power of the AG to fill vacancies is sufficient to refute Calbresi’s point. Full stop, new paragraph.

That is a different question from whether the AG has the authority to appoint Special Counsel “inferior” officers. If such authority exists, it would be a different exception to the Senate confirmation / Presidential appointment rule.

[Bruce Hayden]

So, a federal statute provides that the President can either appoint someone to one of the 92 USA positions (Offices) for four years, with Senate confirmation, or 120 days without confirmation. That doesn’t say anything to advance the argument that the AG can essentially appoint a 93rd USA, but with national jurisdiction.

[Noscitur a sociis]

No one is claiming that § 546 is what authorizes the appointment of a special counsel like Smith. But § 546 does show that Prof. Calabresi is wrong when he says that anyone who wields the power that a U.S. Attorney has, is a superior officer who has to be nominated by the president and confirmed by the senate.

[Bruce Hayden]

The question is not whether or not a USA is a Principal or Senior Officer, or just an Officer. And similarly, whether or not Smith is an Officer. As I read the statutes, the DOJ has the AG, SG, DAG, up to 11 AAGs, and 92 USAs as its Officers. The Constitution gives Congress the power to allow Department heads to appoint other Officers, and Congress has done so for several Departments. It has not done so for the DOJ, so the only Officers (principal or inferior) in the DOJ are the AG, DAG, SG, 11 AAGs, and 92 USAs.

[Riva]

The argument, essentially, is that the AG lacks inherent constitutional authority to appoint an officer like the special counsel, whether the office is perceived as inferior or superior. Arguing the minutia of the statutory authority vested in the AG to temporarily fill a US attorney vacancy only shows that the AG can make no appoint of a constitutional officer without such statutory authority. Full Stop. new paragraph.

The AG could only appoint a constitutional officer like the special counsel if Congress by statute vested him with the authority to do so. It has not done so.

[Armchair]

“The power of the AG to fill vacancies is sufficient to refute Calbresi’s point. Full stop, new paragraph.”

Well…not quite. You see, if an AG appoints a USA, that is time limited by US code to just 120 days.

Jack Smith has been operating much longer than 120 days.

[Noscitur a sociis]

As you may recall, your first comment started,

This “requirement” is not part of our law?

The “requirement” referred to is from Prof. Calabrese’s, post, where he claims that “This requirement of Senate confirmation of U.S. Attorneys has been a part of our law since the Judiciary Act of 1789—i.e. for 235 years.”

My only point in this regard is that our law does not, in fact, require U.S. Attorneys to be confirmed by the senate.

I’m glad you agree.

[Bruce Hayden]

Agreed. I thought that USAs had to be Senate confirmed too. But the statute says that they can either be appointed to a 120 day term, or to a 4 year term if confirmed by the Senate.

[Mr. Bumble]

…and what could a USA accomplish in 120 days?

[Noscitur a sociis]

It also says they can be appointed to a four year term (without senate confirmation) by the court.

[Kazinski]

Right so where is the statute that allows USA’s or special counsels to be appointed for longer than 120 by the AG?

While Congress does allow the AG to appoint a Special Counsel from outside government, it doesn’t actually authorize the AG to make the appointment:
“The Attorney General shall consult with the Assistant Attorney General for Administration to ensure an appropriate method of appointment”.

[Riva]

Going off on a tangent arguing the AG’s statutory authority to temporarily fill a US attorney vacancy, or the district courts power in such a circumstance, says nothing regarding the AG’s authority to appoint a special counsel. Other than that the AG couldn’t do so without statutory authority. What is the statutory authority?

[Noscitur a sociis]

28 U.S.C. § 533.

The Attorney General may appoint officials—
(1) to detect and prosecute crimes against the United States

[Riva]

Nope. Try again. That statute only refers to officials. That statute does not provide blanket authority for AG to appoint anyone as a constitutional OFFICER with the power of a US Attorney.

[David Nieporent]

Niope. Try again. Smith is an official.

[Mr. Bumble]

An official what?

[Riva]

Like your separation of powers confusion, you’re wrong here too Dave. And apparently quite proud of your ignorance. In fact, Steven Calabresi already dealt with the inapplicability of sec. 533 in a 2019 law review article.

In sum, Section 533 clearly concerns FBI officials and agents, not special counsels. It’s part of a statutory chapter concerning FBI officials and agents, Chapter 33 of Title 28 and applies to nonofficer employees, not constitutional officers. “Constitutional officer” is a constitutional term of art. It would be absurd as a matter of statutory language and structure to read section 533 as granting the AG an unlimited power to create inferior constitutional officers notwithstanding the specific statutory scheme for the DOJ distributing enforcement power through senate confirmed appointees, like US attorneys.

[Riva]

But Dave, maybe I should have responded, WHAT? I assumed you at least had some understanding of the issue but perhaps misunderstood the depths of your ignorance. The regulation appointing the hack purports to grant him the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney, the hack himself admits he is a constitutional officer, and he acts like a constitutional officer. And you say he is a mere official? Amazing. Truly. Bragg level legal understanding.

[Patrick Henry, the 2nd]

Nobody agrees, because you are clearly wrong. Sorry!

[JT in Indy]

Your detailed citations have persuaded me.

[Count Twist]

This seems like a pretty silly argument given that Smith is obviously operating with at least the tacit (if not explicit) consent of several confirmed officers, including Garland himself.

Even if this were a correct argument technically, couldn’t Garland just ask the sitting USA in Miami to ratify what Smith has already done in that case?

[Roger S]

Yes, Smith has the tacit consent of Garland, but that only makes it worse. It lets Garland do something, without being publicly accountable for it. Garland presumably knows that the prosecution is improper, but does not want to be blamed when it eventually crashes.

[ObviouslyNotSpam]

Garland presumably does not think the documents case is “improper”. Nor does anyone else not suffering from a bad case of TDS. The most favorable aspect of the case for Trump is that he appointed the judge, and she’s turned out to be everything he could have hoped for.

[Bruce Hayden]

Of course Garland doesn’t think that there is anything wrong with the documents case. Judge Cannon recently ordered declassified and unredacted documents showing that the case was initiated in meetings between AG Garland and WH attorneys early in the Biden Administration. The WH ordered NARA to fully cooperate with the FBI (so, when you hear about NARA requesting documents from Trump, realize that it was the FBI requesting documents that they could not, yet, legally subpoena), as well as terminating his immunity and ordering his security clearances revoked (unfortunately, for the prosecution, they hadn’t gotten around to revoking his DOE Q clearance (which, at a minimum, covers nuclear secrets) by the time of their MAL raid). Compounding the prosecution’s problems, beyond that the chain of custody for the documents had been corrupted by in some cases misfiling sheets indicating where allegedly classified documents had been found in the boxes), is that NARA (presumably again at the insistence of the FBI) had GSA deliver several pallets of boxes to MAL containing documents shortly before their MAL raid. That makes proving chain of custody, etc, much more problematic for anything found in those boxes.

That all said, there is still the question of exactly how Jeffrey Bratt, his Counterintelligence and Export Control Branch (CECB) at the DOJ, as well as their sister organization, the FBI’s Counterintelligence Divisiin (CD), fit in. They were both implicated in the reports by two Special Cousels and the DOJ IG, in misfeasance, malfeasance, and perfidy, on their handling of RussiaGate and the 4 FISA warrants on Carter Page. Much of those reports were, of course classified. Trump, in his last full day in office, formally ordered a binder of those documents declassified. Apparently, even as to a year ago, it hadn’t happened (since, of course, the declassification would have to involve both of those organizations).

In any case, Smith named Bratt his Deputy Special Counsel, and it was he who did a lot of the apparent dirty work. The way it appears to have gone down is that the FBI (likely CD/CECB) requested that NARA request documents marked classified (presumably including Trump’s binder). When the documents weren’t promptly forthcoming (remember, someone with the proper security clearance needed to go through each of hundreds of boxes), NARA provided a criminal referral to the FBI (which itself is legally problematic), which then subpoenaed them from Trump (signed by Bratt). Trump’s lawyers requested either an extension of time or rolling production. They were both refused by Bratt, who then proceeded to issue the MAL search warrant, based on Trump not timely complying with the subpoena, with the raid including CD FBI agents, and then he signed the initial criminal complaint for what the FBI found in the raid.

What we don’t know yet is how the meetings between the AG (who is over both CECB and CD) and Biden WH attys, and Jay Bratt, his CECB and its sister CD, fit together. They obviously do, at some level, because Garland appointed Smith as Special Counsel, and he appointed Bratt his Deputy. But which came first? Was the whole genesis of the case CECB and CD putting together a plan to get the incriminating documents in Trump’s declassified binder back, and they necessarily got Garland on board, and he got the WH involved (CECB->AG->WH)? Or did it work the other way around, with WH->AG->CECB/CD? I expect that we will fairly quickly find out, since the latter would be prima facie evidence of political prosecution.

[ObviouslyNotSpam]

“Garland presumably knows that the prosecution is improper, but does not want to be blamed when it eventually crashes.”

“Of course Garland doesn’t think that there is anything wrong with the documents case.”

Thanks for confirming.

[Rev. Arthur L. Kirkland]

.

Garland presumably knows that the prosecution is improper, but does not want to be blamed when it eventually crashes.

Precisely where on the spectrum does an argument like that reside?

(Asking here because of this community’s experience with respect to on-the-spectrum issues.)

[Mr. Bumble]

Garland does not give a shit about the law. And to think he might have been on the SC.

[Noscitur a sociis]

It lets Garland do something, without being publicly accountable for it.

How is he not publicly accountable, to the extent there’s anything that needs accounting for?

[Bruce Hayden]

The idea is that with an independent Special Counsel, the AG can claim that he wasn’t really involved. He just appointed Smith as SC, and Smith just found what he found. As a direct report of the AG, operating solely under the AG’s power and authority, Garland would not have plausible deniability as to the political motivations of Smith’s prosecutions, nor would the WH, since the AG is the 4th ranked Cabinet member, and reports directly to the President. Making things worse, are the recently declassified and unredacted (by order of Cannon) documents showing that AG Garland and WH attorneys met early on to authorize and set up the investigations.

[Lee Moore]

The last time this came up, I vaguely recall there was a reference to precedents on the presumptive validity of acts by a not-actually-an-officer-whoops “officers”, until such time as the “officer’s” validity was challenged.

So I’m guessing it’s a bit complicated. ie stipulating that he’s not an officer then there are presumably things :

1. that don’t need to be done by an officer anyway (which should therefore be fine) or
2. which can be done by a mere employee iff he is properly supervised by an officer (ie generating a factual question as to how he has been supervised, and whether that meets the standard, or
3. which must be done by an officer

So in respect of improperly supervised acts under 2, or all acts under 3 – we then get into the question of the temporal cut off – when in the legal process does he get to the moment of losing his presumption ?

And then we get on to your question of how effective ex post facto rubber stamping by an officer is. So for example if filing an indictment in court is a 2 or 3 item, and it wasn’t done right, does that nix the indictment and require a new one ?

Anyway – we don’t get there at all unless La Cannon and/or higher courts conclude that there are problems with Smith’s status.

[Riva]

Requiring proper authority for Garland to appoint a constitutional officer is not silly, unless you think the constitution is a silly obstruction. And that hack Smith is certain exercising the authority of at least an inferior constitutional officer. But aside from that, if the “special counsel” is nothing more than adjunct assistant to the AG, what is the frigging point of a so-called independent “special counsel” prosecutor in the first place?

[not guilty]

There is no constitutional impediment to the Attorney General appointing a prosecutor here. The Suprme Court has opined that a federal criminal proceeding:

is a judicial proceeding in a federal court alleging violation of federal laws and is brought in the name of the United States as sovereign. Berger v. United States, 295 U.S. 78, 88 (1935). Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. § 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.

United States v. Nixon, 418 U.S. 683, 694 (1974) (footnote omitted).

Pursuant to the same statutes cited in Nixon, Attorney General Garland issued Order No. 5559-2022, dated November 18, 2022, appointing Jack Smith as Special Counsel and specifying his duties. https://www.justice.gov/d9/press-releases/attachments/2022/11/18/2022.11.18_order_5559-2022.pdf

[Lee Moore]

28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. § 509, 510, 515, 533.

The catalogue of code sections is a little less impressive than it looks. Leaving aside the question of whether there are constitutional limits on what a non-officer may do, let us look for a provision that allows the AG to appoint an “officer”. (We can also leave aside the vacancy appointment power discussed above.)

509 – simply sets up the AG as the head DoJ honcho. No appointment powers.

510 – The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

This obviously has nothing to do with appointing anyone to an office, it is to do with authorizing performance of functions by various functionaries.

515 – a)
The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.
(b)
Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.

(a) deals with what various functionaries may do – it has nothing to do with appointment, other than making it clear that the attorneys specially appointed must be appointed under law
(b) Arguably this gives the “under law” appointment power for special assistants, but it only refers to specially retained attorneys, there is no mention of officers. Indeed the wording of (a) excludes officers of the DoJ from being specially appointed attorneys.

516 – Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.

This provides the general rule – you gotta be an officer, unless “otherwise authorized by law”- there’s no appointment power here.

533 – The Attorney General may appoint officials—
(1)
to detect and prosecute crimes against the United States;
(2)
to assist in the protection of the person of the President; and
(3)
to assist in the protection of the person of the Attorney General

to conduct such other investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General.

And here it is – an appointment power ! But it refers to “officials” not “officers.”

Clearly from the implied reference to burly security details, “officials” include people who are not Article 2 officers. (It’s in the FBI section.) But is an Article 2 “officer’ an “official” ? An argument against is that if 533 gives the AG power to appoint proper Article 2 “officers” willy nilly, then why would he need the power to appoint temps to fill a vacancy in 546 ?

Who can say ? Well the judges get to say in the end. (Or maybe Nixon is an on point binding precedent and they’ve said already.)

[not guilty]

In Morrison v. Olson, 487 U.S. 654, 671 (1988), an independent counsel appointed by the Attorney General was held to be an inferior officer for purposes of Article II, § 2, cl. 2.

That decision has been criticized, but unless and until it is overruled by SCOTUS, it remains controlling precedent, binding on all lower federal courts.

[Lee Moore]

I may be wrong, but I think that case is about an independent counsel appointed by the court under express statutory powers which have now lapsed.

So the question at issue here – whether there is statutory authority for the appointment of Smith to an “officer” position – is different from the issue in Morrison v Olson, which was about what kind of officer Morrison was, and whether executive branch officers could be created that the President couldn’t fire.

[Bruce Hayden]

Very much the case. Morrison was an Independent Counsel, appointed by the courts, under a since expired statute. It was not renewed because of apparent abuses, but the Morrison case, if I remember correctly, revolved around Separation of Powers issues (the Judiciary was arguably exercising Executive powers).

Jack Smith was appointed a Special Counsel, which is a fully DOJ operation, which keeps it in the Executive Branch, where criminal investigations and prosecutions belong. Of course, the reason that the Independent Counsel statute was enacted was to remove these investigations from the politicization of being overseen by the AG.

[not guilty]

I was mistaken when I said that Ms. Morrison was appointed by the Attorney General. But the criteria of who qualifies as an officer for purposes of Article II, § 2, cl. 2 would apply to Jack Smith as well.

[Lee Moore]

Absolutely, so long as Congress has given the AG authority to appoint Article II officers of the Smith variety.

At present it looks like 533 is his best bet, though not exactly a slam dunk.

[Riva]

The Nixon passage quoted above is dicta. It was just background and unnecessary to the resolution of the issue in Nixon, which concerned whether the DOJ could challenge the President’s assertion of executive privilege. No one challenged the appointment of the special counsel in that case.

[not guilty]

Assuming arguendo that the passage I quoted is dicta, is it incorrect? As the Eleventh Circuit has opined, “there is dicta and then there is dicta, and then there is Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006).

For an inferior court, “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” Sierra Club v. E.P.A., 322 F.3d 718, 724 (D.C. Cir. 2003), quoting United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997).

[Riva]

Yes, clearly incorrect. Lee Moore’s comment above outlines the provisions. I would add that section 533 is not applicable at all. that provision is part of a statutory chapter concerning FBI officials and agents, Chapter 33 of Title 28, and applies to nonofficer employees, not constitutional officers. So the dicta is plain wrong. These statutes do not vest the AG with the power to appoint a special counsel with the powers of a US Attorney.

[David Nieporent]

Repeating a phrase like “constitutional officer” that you don’t understand and never heard of until Calabresi started pimping it out a few weeks ago is quite silly. But that’s your standard m.o.: wait until someone in Trumpland floats an argument, no matter how frivolous, and then just keep repeating it as if you understand it.

What’s silly in either case is the notion that finding Smith to be disqualified would require dismissal of the prosecution. (Although it would be unintentionally hilarious if Trump won that argument, the case was dismissed, and then after he was reindicted it was assigned to a new judge who was actually competent.)

[Bruce Hayden]

In Nieporent speak, “competent” means strongly Dem leaning.

[Sarcastr0]

Between what it says as to your take on DMN and Judge Cannon, this tells on yourself a lot more than you intend.

[Stephen Lathrop]

Sarcastr0, to Hayden, the test for being, “Dem leaning,” is whether the person is in the slightest bit institutionalist. That’s pretty standard for MAGAs. Liz Cheney, is thus, “Dem leaning,” for most of them.

[santamonica811]

Whore away, good professor. Looking forward to seeing you whore inside govt, come Jan 2025 (or as soon after as the soon-to-be Republican Senate will confirm you).

[Dr. Ed 2]

And people complain about me…..

[Frank Drackman]

Well it’s because you act like you know everything

[bernard11]

And people complain about me…..

Yeah. We do.

I don’t see sm811 calling for Calabresi and those who agree with him to be shot, along with their students, just to avoid contagion.

That would be your approach, though maybe you’d prefer they be beaten to death with baseball bats, just to drive home the point.

[EllaWilson]

Muted

[Sarcastr0]

Nobody cares, Ella.

[I Callahan]

Grow up.

[Randal]

Wow, Calabresi’s just making up laws in his head at this point.

The only power, which Congress has given to the Attorney General is the power to make a sitting U.S. Attorney a Special Counsel with jurisdiction to prosecute cases nationwide and outside his or her home district.

No, the Independent Counsel authorization lapsed. Congress hasn’t given the Attorney General any power with respect to Special Counsels specifically.

Jack Smith, however, was a private citizen, and not a sitting U.S. Attorney, when Attorney General Merrick Garland named him to be the Special Counsel… True! … Smith’s appointment as an inferior officer was thus unconstitutional…

He wasn’t appointed as an inferior officer. The whole inferior officer conceit is a red herring. He was appointed as Special Counsel. There’s no rule that only officers can hold prosecutorial powers. In fact, the act of Congress that does authorize this whole scheme explicitly empowers “mere employees:”

28 U.S. Code § 510 – Delegation of authority

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

Which Janet Reno did in 1999 in setting up the Special Counsel regulations… which themselves explicitly require the appointment of an outside lawyer, not a sitting US Attorney, for purposes of additional impartiality. The US Attorneys who’ve been given Special Counsel designations have gotten them not through the standing Special Counsel regulations but by the Attorney General acting through § 510 directly.

The best argument that Jack Smith’s appointment is unconstitutional would therefore be that Janet Reno, as a woman, can’t have promulgated a regulation that he considers appropriate.

That doesn’t mean that the Supremely Craven justices won’t just make up some shit to get Trump off the hook, probably along the lines of Calabresi’s brain worm above. But it’s all bullshit. Of course.

[Lee Moore]

I suspect that there are better arguments in Smith’s favor than this. The reason I think so is that Smith himself has argued that he is an inferior officer in one of his own briefs.

Presumably he thinks it is important that he is one such.

[Social Justice is neither]

And he most certainly isn’t self interested at all. JFC the argument for him seems to come down to you want it to be true and political actors for one side, yours of course, are pure of heart and motive in all things.

[bernard11]

Looks pretty clear and common-sensical to me.

[Lee Moore]

Common sense or no, I don’t think it can be said to be clear.

The trouble with Randal’s confident assessment is that there is precedent (though hardly clear precedent) on what a mere employee may or may not do – ie if you’re too big a cheese (wielding “significant authority”) then you have to be an “officer.” (With a carve out for time limited temps.)

So if you go the Randal route – “I’m just an employee, not an officer” – you then get into the question of detail, ie how much authority does a (or rather this particular) Special Counsel have ? And is it too much or just right ?

If it’s “too much” then the statute that Randal quoted is of no help, because it’s unconstitutional (as applied to a “too much” authority Special Counsel who isn’t an officer.)

And I suspect that the Special Counsel and the DoJ are a little nervous about the “too much” authority question, which is why Smith claims that he is an (inferior) officer, which would make the “too much” authority question disappear.

[Randal]

If SCROTUS goes this route, it for sure takes down the current practice of District Court appointed regular term US Attorneys with it, right?

Given that that regime has been in place since I think the Roman Empire, it feels like a tricky precedent to work around.

[Lee Moore]

No, such US Attorneys are officers, because they are appointed by the District Court under express powers granted by Congress in 28 U.S.C. § 546(d). So they fall within the bit of Article II that says :

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

This particular power is limited to vacancies.

[Stephen Lathrop]

Tricky courts make short work of tricky precedents. But you already mentioned that.

[Roger S]

Whatever the merits of the technical argument for and against Smith’s appointment, these special counsels are a terrible idea. If the Biden administration wants to prosecute Trump, it should own up to the idea directly, and not hide behind the decisions of a private citizen. No one elected Jack Smith.

[Rev. Arthur L. Kirkland]

Son of a bitch!

[Mr. Bumble]

Deriding Jack Smith like that isn’t helpful.

[Frank Drackman]

You are? Explains your Revolting nature

[David Nieporent]

This is just a mindlessly stupid argument. Roughly zero out of 330 million Americans are not crediting/blaming the Biden administration for these prosecutions. The appointment of Jack Smith did not magically make people forget who the president was.

[ObviouslyNotSpam]

Magapeople are already convinced the WH is controlling the state prosecutions in New York, Georgia and elsewhere. This would be a no-brainer.

[Estragon]

This is fringe-on-the-flag admiralty shit. Is he still teaching con law to 1Ls?

[Brett Bellmore]

Lots of current precedent was fringe on the flag shit right up until it prevailed. Civil forfeiture of property with identifiable owners, for instance: It’s batshit crazy!

People get jaded and forget how much of current doctrine was viewed as flat out insane until it prevailed.

I’m not saying this particular point is likely to prevail; It would be inconvenient to the government if it prevailed, and that’s pretty decisive right there, much more so than the actual text of the Constitution.

I’m just saying “That’s nuts!” really does not prove much, until the 9 fold fat lady sings.

[Commenter_XY]

Brett, I don’t know what the big fuss is about. Any decision that Judge Cannon makes is going to be appealed, that is just going to happen no matter what. If this legal question is a slam dunk, then resolution should be quick.

Quick, by judicial time, that is.

[loki13]

“Brett, I don’t know what the big fuss is about. Any decision that Judge Cannon makes is going to be appealed, that is just going to happen no matter what. If this legal question is a slam dunk, then resolution should be quick.

Quick, by judicial time, that is.”

The big fuss, so to speak, is that Judge Cannon has, through both the specifics and the totality of her actions, made it obvious that she is not trying this as a normal case.

I am quite sure that there are a lot of people in prison who would appreciate that amazing solicitude Judge Cannon has shown to a particular side in this case to date, and, based on a very little bit of research, it would appear that Judge Cannon has never provided other criminal defendants with these jaw-dropping decisions, over and over again.

I keep going back to the same point (which I usually make about the highjinx in the 5th). Lawyers know that judges will be wrong sometimes. It happens! It’s when (1) regular process gets abused and (2) you see that the judges are reaching the same pre-ordained decisions regardless of the facts or law or process that you need to start to worry.

[Lee Moore]

Is calling an oral hearing on a motion by one of the parties regarded as an abuse of process ?

Is the answer to the question so blindingly obvious that you can dispose of it in a crisp sentence or two ? In which case please provide said sentences.

Or is the date for the hearing set abusively near, or abusively far in the future ?

[loki13]

Are you asking serious questions? It’s really hard to tell.

So, first- it’s federal court. The vast majority of issues are not decided with oral arguments. Ever. (I am going to slightly cabin this by saying that different circuits have slightly different norms, and different judges have different norms as well, but I am familiar enough with the district courts of some jurisdictions, including Florida, that I can say that this is definitely the exception).

But if you want to go through the hundreds and hundreds of pages of docket entries, you will see the same continuing theme- that the Judge will require briefing, and briefing, and additional briefing, on the most inane issues that should be easily dealt with, and then often schedule them for later hearing … even if they aren’t colorable legal issues. And, in addition the briefing, she will continue to demand more actions from the Prosecution that have no bearing on the various legal issues, but do require additional time to comply.

Over and over again. This is just another example of it. If this was the only one, then, sure, it happens. But it’s every single thing.

But you tell me- you look at the docket, and using your wealth of experience explain to me if I was a slightly dumb golden retriever if you think this is how a case normally proceeds?

[David Nieporent]

Over and over again. This is just another example of it. If this was the only one, then, sure, it happens. But it’s every single thing.

And it comes on the heels of the search warrant debacle, where Cannon pretended Trump made motions he hadn’t made, injected her own theories of relief, and (as the 11th Circuit was forced to explain) crafted rules that either said that a former president has special status as a criminal defendant or utterly upended federal criminal law for all defendants. In a situation where Trump not only was not entitled to relief but didn’t even have standing.

[Kazinski]

“The vast majority of issues are not decided with oral arguments. Ever. (I am going to slightly cabin this by saying that different circuits have slightly different norms, and different judges have different norms as well”

How normal is it for two former US Attorney Generals to write a brief on the issue and a supreme court justice to ask a question at oral arguments about the issue just weeks ago?

I’d say that’s not normal either, and I’d say most judges would figure it needed a closer look, especially since.there is no prospect of scheduling the actual trial soon anyway.

And if its just Cannon, how is the DC trial going? And maybe if there weren’t seemingly coordinated cases all over the place that Trump had to deal with then faster progress would be made, rather than give Cannon all the blame maybe you could save some for Jean Carroll, Leticia James, Allan Bragg, Fani Willis, and Jack Smith, who indicted Trump in two different jurisdictions.

[loki13]

And I will add that this include the Judge herself adding new legal issues into the case that the Defense hasn’t even raised.

…Which, considering the Defense has raised every single colorable, not-colorable, and “natural born citizen” argument that they can conjure, is saying something.

Finally, I will add that in addition to requiring multiple rounds of briefing, and conferences, and oral arguments, the Judge will often “punt” on the decisions! If you’ve ever practiced, watching this is surreal.

[Stephen Lathrop]

Loki, given what you say, would Jack Smith be wise to appeal to get Cannon off the case? If so, why has that not happened? Is it because even lawyers not sympathetic to Trump—Nieporent, here, for instance—insist there is not legal basis to do it? Do you think there is legal basis to do it?

[ObviouslyNotSpam]

You are effectively asking why don’t other attorneys do what Trump’s attorneys would certainly do in the same situation. Self respect?

[loki13]

“Loki, given what you say, would Jack Smith be wise to appeal to get Cannon off the case?”

The standard to get a judge off the case because you think that the judge is ruling against you, without the specific ability to articulate bias as defined in the judicial code of conduct, is …. not totally impossible, but almost impossible, and for good reason. 99.99999% of the time, the reason a judge is consistently ruling against you is because of, um, you.

I have seen various articles that have posited that at some point, the DOJ (through Jack Smith) might try to file this type of motion given what has occurred, but given both the insanely high standard and the institutional pressure (the DOJ is, obviously, a repeat player in litigation) I am not holding my breath that it will happen.

[bernard11]

Lee,

Are you saying that if I’m charged with a crime I can file motion after motion, and the judge will/should schedule a hearing on each one, six weeks in the future, and then take her own sweet time deciding?

So if I have the money, and some creative lawyers (though I’m sure the latter will arrive if I have the money) I can play this game forever?

Is this how the law works in the US?

[Lee Moore]

I cannot say I’m an expert on the procedure, but I imagine that if you keep filing motions the judge has to dispose of them somehow. It might take 5 seconds to conclude “that’s nonsense” without further briefing, so you could go directly to dismiss.

I imagine if the judge gets tired of your inane motions he/she might just tell you to stop making any new ones.

[bernard11]

So the judge has both the power and, almost, the obligation (given the desirability of moving the particular case, and others, along) to dismiss silly stuff out of hand.

Right?

[Lee Moore]

I assume so.

The question is whether this is an example of “silly stuff.”

The Lucia case referenced above is an illustration of the fact that this sort of nicety may be silly to some folk, but not so silly to others.

And leaving aside the details of this case, the question of whether those who exercise power over the citizen have the legal authority to do so doesn’t seem that silly to me.

[Voize]

Prof. Calabresi cites Lucia for its “Buckley” criterion, the one that says officials must be officers if they wield “significant authority pursuant to the laws of the United States”.
But he ignores the second test from Lucia, the one originating in US v. Germaine, 99 US 508 (1879). This test requires that the office be “continuing and permanent”. Lucia requires that both tests be satisfied for an individual to be an officer rather than an employee. But the Special Counsel is appointed on an ad hoc basis, his office disappears once the issue it was created to handle is handled.

[David Nieporent]

I imagine if the judge gets tired of your inane motions he/she might just tell you to stop making any new ones.

Yes. That was indeed what I was going to say in response to your previous statement “if you keep filing motions…”

More to the point, typically the judge will set a single deadline for a MTD. You get one shot to make all your arguments, and then the judge decides it — as Loki said, typically without oral argument. Unless new previously unavailable facts are discovered later (or new law is handed down from above), that’s it: no subsequent motions. You don’t get to say, “Oh, I’ve just thought of some other argument; I’m going to make another one.”

[Kazinski]

Loki, I don’t remember you being upset that Hunter Biden challenged Weiss’s appointment as special counsel, then appealed it to the 3rd circuit, and just got his appeal rejected, but not on the merits.

Crimes Hunter was accused of perpetrating 2018 and before. So it doesn’t seem like Trump’s trials are taking especially long compared to Hunter’s, which will start in June.

[Sarcastr0]

Hunter Biden challenged Weiss’s appointment as special counsel

Did that happen? I don’t see a lot about it.

Also, if it did happen it’s not gotten the coverage on the VC that Calabresi is giving this bit of nonsense.

I’m not saying not guilty is a saint of nonpartisanship, but I’m not seeing a double standard here.

[Kazinski]

It just happened this week:

“A federal appeals court on Thursday rejected a request by Hunter Biden to toss the pending criminal gun case against him, saying his appeal was premature.

“The third motion to dismiss argued that the appointment of David Weiss as special counsel for the Department of Justice to handle Biden’s cases violated federal rules requiring special counsels to be selected from outside the U.S. government. Weiss was U.S. Attorney for Delaware at the time of his appointment as special counsel, and he remains in that office.

Noreika in separate rulings in April rejected all three arguments for dismissal of the indictment.”
https://www.cnbc.com/2024/05/09/hunter-biden-gun-case-appeals-court-refuses-to-toss-delaware-case-.html

I don’t know why it would get special attention on VC, people make motions all the time, and appeal them and delay their trials, just as Hunter did in this case.

But its worth noting that Hunter did exactly what people are pulling their hair out for here, argued his case should be thrown out because the special counsel was illegally appointed, and because of selective prosecution, and the judge heard his arguments and ruled against him.

Then Hunter appealed to the 3rd circuit and lost again.

[Sarcastr0]

This is an easy one Armchair – no one said Hunter would or should win.

By contrast, when it comes to Trump you have a lot of back-and-forth.

[David Nieporent]

But its worth noting that Hunter did exactly what people are pulling their hair out for here, argued his case should be thrown out because the special counsel was illegally appointed, and because of selective prosecution, and the judge heard his arguments and ruled against him.

You’re mistaken. What people are pulling their hair out for here is not that Trump made these arguments — we’re rolling our eyes at that — but that Cannon is very very lethargically indulging Trump.

[Kazinski]

Yet Hunter’s Judge also indulged him, and then there was.further delay when he took it to the 3rd circuit.

And as I also pointed out, Hunter’s crimes were 2014-2018, Trump is being charged in Florida for charges 2021-22, so it hardly seems like She’s dragging her feet that much.

What’s the hurry?

[loki13]

Except, as I just detailed below… none of what you write is correct.

The judge DID NOT indulge him.

The trial date was set.

The multiple motions to dismiss (all filed at the same time) were dealt with expeditiously, on the papers, and the case continued while they were dealt with.

And the VERY brief appeal was interlocutory, and DID NOT affect the trial date.

Other than that, as usual, batter 1.000.

Seriously, is there something up with you that you both refuse to “do homework” (aka, learn basic facts about the things that you are talking about) but also insist that other people have to do basic homework because you refuse to?

Good job, that.

[Kazinski]

“The trial date was set.”

6 years after the crime, and to be sure this isn’t Hunters only case, but he’s got only one prosecutor going after him in 2 jurisdictions.

How is Cannon going to set a trial date when the NY trial is going to be going on another 4 or 5 weeks, and Trump has to be there everyday?

And he’s got an appeal in front of the Supreme Court now.

And an appeal up in the Georgia court of appeals.

And there are still proceedings in the RICO case.

And appeals in the two NY civil cases.

Neither Trump or Cannon did, blame the people who created the mess guaranteeing there would be a log jam.

[loki13]

When it has been pointed out that you are wrong, again, you just change the subject.

Do you ever get tired, Kaz. Maybe it would be less tiring to actually do some homework and educate yourself.

There is a reason that almost every observer, outside of Calabresi, has raised both eyebrows at Cannon’s conduct in this trial.

[not guilty]

“I’m not saying not guilty is a saint of nonpartisanship, but I’m not seeing a double standard here.”

I have never pretended to be anything other than a yellow dog Democrat since I began voting in 1974. I am just as subject to confirmation bias as anyone. That is why I am careful to cite applicable legal authorities in support of what I say on these comment threads and link to original source materials when I can.

[loki13]

“Loki, I don’t remember you being upset that Hunter Biden challenged Weiss’s appointment as special counsel, then appealed it to the 3rd circuit, and just got his appeal rejected, but not on the merits.”

Well, I don’t remember the following-

1. Knowing about this.

2. Having a VC commenter pushing the issue and saying that Hunter was right.

3. Having a VC commenter saying that the judge was a “HERO” for indulging the argument.

Other than that, you are batting 1.000 Kaz. As usual. With your, “Look, a squirrel!” arguments. But sure, other than the fact that I don’t normally comment on things that aren’t brought to my attention, and that it’s completely different, you are right!!!!

But, I did bother looking at it, because I’m a glutton for answering your stupid questions, even though you can’t be bothered to “do homework” (as you put it- I would say, “Learn basic facts about things before spouting off nonsense you learned from your dumb news sources….. which do say a lot about you).

So, Hunter Biden-
Filed all of his (multiple) motions to dismiss in December. There were four, filed at the same time. Failure to comply with prior agreement, failure to charge a constitutionally permitted claim, special counsel stuff, and the Trump Special, selective and vindicative prosecution. Response and replies were filed by the end of January, 2024. The case continued along, and the Court had a status conference set on Wednesday, May 13, 2024, stating that the parties needed to discuss the trial schedule assuming there was no dismissal. Jury trial was set beginning June 3, 2024 (for calendaring, actual date TBD).

The judge denied (without oral argument or more BS) all the MTDs on April 12, 2024.

Biden filed an interlocutory appeal on April 17, 2024.

Meanwhile, the case continued! Yeah, I know!

The 3d DCA dismissed the appeal on May 9, 2024.

The same day, the judge issued the scheduling order setting the trial and the pretrial conference as stated previously.

This … this looks like how a case progresses (one where attorneys are duking it out, and the judge is keeping it on track). HOW DOES THIS COMPARE, KAZ?

Again, use your wealth of experience to explain to me why you think that this is, IN ANY WAY, comparable to what Judge Cannon is doing? Or just shut the KAZ up already. K? THX!

[loki13]

And, in case the sarcasm isn’t obvious … yes, Judge Maryelln Noreika is actually running this like a normal criminal proceeding. Doesn’t take a hero.

Look, I know that she is a “Trump” judge, and I might actually say that Hunter got a raw (or at least, unexpected) deal when the plea went south because of her. But I don’t think that any of this is particularly unusual for normal criminal procedure. Hunter is being treated like, well, everyone else who is charged …. which just makes everything going on in Cannon’s courtroom that much more galling.

If anything, the fact that someone could even imagine comparing these two cases is what shows you that partisanship trumps (um, yeah) the ability to critically think.

[Kazinski]

Hunter is being charged for a crime that happened in 2018 in Noreika’s court, so nothing hasty about him coming up for trial this summer.

But I don’t think Cannon is actually adding any delay to the Florida trial, there was no way for it to get underway in June, so she is using that time to dispose of other business. In case you haven’t heard Trump in under trial now in NY, and could last another 4 weeks, that’s the biggest holdup. Besides that there is the immunity proceedings in DC, which could also delay it further.

And speaking of the Immunity procedings, last week a Supreme Court justice asked about this specific issue in her trial in oral arguments. I’d think a judge trying to delay, would make sure there were no arguments and briefs on the record in case 3 more members of the SC wanted to look at the issue, instead of scheduling arguments and briefs in June when no.trial is going to be taking place anyway.

Realistically when is her window to schedule Trump’s trial? Probably during the GOP convention In July, I would guess.

I’d actually like to see a rating war between the Democratic convention and a Trump trial.

[loki13]

“Hunter is being charged for a crime that happened in 2018 in Noreika’s court, so nothing hasty about him coming up for trial this summer.”

You literally cannot stop lying, can you. Or, in the alternative, you literally cannot stop arguing wrong points because you refuse to “do homework.” It doesn’t matter when a crime occurs (other than the SOL), what matters is when the proceedings begin.

“But I don’t think Cannon is actually adding any delay to the Florida trial”

The only true thing you have stated here is that you don’t know. No, I actually laid out things and as I, and others who understand procedure have pointed out repeatedly, Cannon has done everything possible to drag this out- not just here, but starting from the search warrant on. But you’re right, YOU DON’T KNOW. And yet you seem to have strong, and wrong, opinions about it. Good job, you!

“I’d think ….”

Again, why are you opining about something you don’t understand? But sure, since you keep comparing this to the Hunter trial, why don’t you explain how that whole process happened, and why the 3d DCA did what it did? And what would have happened if Judge Cannon had simply ruled on the motion, and the defense preserved the argument? But you don’t know, do you? You just blather, because you don’t actually have any knowledge, you just have a desired goal in mind.

“Realistically when is her window to schedule Trump’s trial? Probably during the GOP convention In July, I would guess.”

Putting aside the obvious point (which was this case has ALREADY been severely delayed), I didn’t realize that the entire point of criminal prosecutions was to schedule trials so that they didn’t inconvenience a criminal defendant.

This just further to show you that all the people, such as you, who are saying that Trump is being singled out ARE CORRECT. Just not the way you think. Repeatedly, he is getting different treatment than any other person would. This has been true in every single case (yes, even the NY State Case, which has been incredibly deferential to him … I can’t imagine any other criminal defendant, even a politician, doing what Trump has done in terms of attacking witnesses and the jury, repeatedly, and that’s just one issue).

The only difference with Cannon is that the judge is bending, and breaking, the rules in order to make things as difficult and dilatory as possible for the prosecution, which, again, as every single person with actual knowledge of how this works has told you is not normal. Far from it.

But hey- you keep doing you. When it’s repeatedly pointed out how wrong you are, you refuse to own it and keep changing the subject. The cause can’t be failed, only reality can be wrong, right Kaz?

[ObviouslyNotSpam]

Judge Cannon is behaving exactly as Trump thinks judges should behave. They are supposed to display loyalty. This is why he appointed her.

What’s comforting is that there are very few Judge Cannons on the bench–much to Trump’s chagrin, no doubt.

[bernard11]

XY,

The big fuss is that Cannon has been doing everything she possibly can to help Trump since the case began.

A big part of it is to introduce delay after delay, in an effort to delay trial until after the election and inauguration, giving Trump – she hopes – the opportunity to kill the whole case.

The woman is as crooked as a snake.

[Bruce Hayden]

Or, just maybe, the prosecution was just that shoddy and slipshod.

An opposite position is that the DOJ has been cutting corners since the AG met with WH lawyers shortly after the inauguration to set up the entire investigation and prosecution. The latest snag is that Smith has admitted that the FBI doesn’t have an accurate audit trail for the alleged classified documents that it seized in its MAL raid. They supposedly inserted place markers in the boxes where they had found those documents. Apparently, they didn’t do that consistently. Part of Trump’s defense is that the allegedly still classified documents were swept into the boxes when his desk in the Oval Office was cleaned off, in preparation for his next meeting or phone call, mixed in with other documents from that call or meeting he just completed, and not seen again until the FBI opened the boxes after their MAL raid. The proper location of the documents is key to that defense. Moreover, it turns out that several pallets of the boxes were under NARA control until sometime before the raid, when they were shipped by GSA to MAL. This goes to motive (that Trump had no idea what was in many/most of the boxes until the FBI MAL raid). Which makes it spoliation of exonerating evidence.

So, last week, rescheduling trial was frozen until this could be worked out. What should the judge do or have done? Suppress everything seized from the MAL raid? Limit the allegedly still classified documents that they can use against Trump to those with clean audit trails? Tell the jury that the FBI didn’t properly secure the audit trail for specified documents? Or overall? Should the defense then get to introduce the photo leaked by the FBI supposedly showing classified documents found at MAL, and show how and why it is known to have been faked (going to the honesty of the FBI involved in the raid)? Heck, at this point, they probably don’t even know which documents and how many are involved – Smith just used the word “some”. If it was just a couple documents, maybe the prosecution could just delete them from its indictment.

Of course, the trial is already on hold pending resolution by the Supreme Court of Trump’s Immunity claims. Moreover, the Personal Papers/Presidential Records issue still has to be resolved, before the case can go to a jury. The proper jury instructions are a question of law, and Judge Cannon started the debate by proposing two different jury instruction alternatives, both favoring Trump. Smith was quite upset that his proposed 3rd alternative (essentially giving NARA control of that determination) was not included.

Bottom line is that the case isn’t going to trial anytime soon. There are way too many open legal questions that need to be settled before a jury is empaneled. The judge’s job isn’t to do whatever the prosecution wants it to do, on their timeline, but be an impartial arbiter. Yes, the prosecution isn’t happy right now, but that’s probably because of their overly aggressive timeline, which many believe was in order to affect the outcome of the election.

[NvEric]

You’re right about the process when a president leaves office. This was not done fully with Trump. That some boxes did not follow Trump to Florida was to weed out any questionable documents.

Since that was done, then there’s no legal challenge against Trump.

If boxes were not inspected before going to Florida, then again, there’s no legal challenge against Trump, since the process was not followed by those tasked to do so.

Only those that Trump personally took with his bare hands could ever be challenged, if even then, since he is the authority as president to do as he pleases regarding classification. However, no one can declassify current national secrets, to divulge to the public without being held to applicable standards and consequences. But, those secrets must have a certain substance or weight great enough to be of a valid concern. Mere labels do not constitute validity for their purpose in the classification realm. Since validity of government demands validity in enabling government, secrets invalidate the validity required for the producers enabling government.

This case is criminal to those bringing it against Trump since the processes designed to prevent such occurrences were never done by those who have been legally bound to do so.

[bernard11]

Part of Trump’s defense is that the allegedly still classified documents were swept into the boxes when his desk in the Oval Office was cleaned off, in preparation for his next meeting or phone call, mixed in with other documents from that call or meeting he just completed, and not seen again until the FBI opened the boxes after their MAL raid.

Trump says. Now pull the other one.

[Bruce Hayden]

That is for the finders of facts (the jury) to decide. Do they believe Trump and his attorneys, or Smith and his? But since this goes to an element of the crime, Smith very likely will have to prove Trump wrong beyond a reasonable doubt.

[not guilty]

What specific element of the crime do you refer to?

[Bruce Hayden]

Mens rea. Intent.

[bernard11]

the prosecution isn’t happy right now, but that’s probably because of their overly aggressive timeline, which many believe was in order to affect the outcome of the election.

“Many believe.”

“Lots of people are saying.”

What happened to that Nobel peace prize?

[David Nieporent]

Apparently, they didn’t do that consistently. Part of Trump’s defense is that the allegedly still classified documents were swept into the boxes when his desk in the Oval Office was cleaned off, in preparation for his next meeting or phone call, mixed in with other documents from that call or meeting he just completed, and not seen again until the FBI opened the boxes after their MAL raid. The proper location of the documents is key to that defense. Moreover, it turns out that several pallets of the boxes were under NARA control until sometime before the raid, when they were shipped by GSA to MAL. This goes to motive (that Trump had no idea what was in many/most of the boxes until the FBI MAL raid). Which makes it spoliation of exonerating evidence.

You’re just repeating dumb talking points. First, the thing about “GSA shipped them” is just a lie. Trump did.

Second, Trump’s defense has actually been that he has a right to steal these documents, not that he didn’t know they were there.

Third, even if that were Trump’s defense, and even if it were true, it wouldn’t be a defense. That might have worked back when NARA was politely asking for the documents for a year and a half, but eventually Trump was hit with a grand jury subpoena. At which point he turned over a small number of documents along with a false affidavit stating, inter alia:

a) A diligent search was conducted of the boxes that were moved from the White House to Florida;
b) This search was conducted after receipt of the subpoena, in order to locate any and all documents that are responsive to the subpoena;
c. Any and all responsive documents accompany this certification; and
d. No copy, written notation, or reproduction of any kind was retained as to any responsive document.

A little late after that to say, “Actually, we just never looked.”

Oh, and fourth, the order of the documents in the boxes isn’t evidence of anything.

[Mr. Bumble]

My oh my aren’t you full of piss and vinegar and bullshit this morning

[David Nieporent]

My stalker again has nothing substantive to say.

[Mr. Bumble]

Don’t flatter yourself that you are worthy of “stalking”.
My comment was aimed at your flurry of comments this morning and nothing else.
Seems Bruce Hayden has some substantive comments below so waiting for your substantive response.

[Bruce Hayden]

“Oh, and fourth, the order of the documents in the boxes isn’t evidence of anything.”

It’s exonerating evidence. One of Trump’s defenses is that he had no idea what was in most, if not all of the boxes, because they were filled from staffers clearing off his desk in the Oval Office, in preparation for his next meeting or phone call, with whatever was on his desk, classified or not, thrown in together. Then when a box was filled, it was stored, until after Trump left office, at which time it was shipped to MAL, where it was stored under lock and key, and protected by the Secret Service, until the MAL raid, where the FBI seized the boxes, and went through them, finding what they found. The point is that Trump didn’t know what was in most of the boxes. He hasn’t seen the contents of the boxes since they were on his desk in the Oval Office. The relevance of the order of the documents is that proximity to other related documents from specific meetings or calls is evidence that that story, of his lack of knowledge of what was in each of the boxes, is corroborated. That goes to mens rea, or intent, and the destruction of that evidence would thus be destruction of exonerating evidence.

[David Nieporent]

One of Trump’s defenses is that he had no idea what was in most, if not all of the boxes,

Once-a-fucking-gain: Trump claimed that all the boxes had been reviewed and all documents with classified markings had been returned. He did not claim that he had no idea what was in them.

And even if that narrative as to how the documents originally got into the boxes is 100% true — which the order of documents within a given box is irrelevant to — it is not a defense to any of the charges for which he has been indicted. He’s free to tell that story, and to call as witnesses many people who can tell the jury that this was the way things were done in his incompetent White House. Hell, the DOJ is likely to concede all that. Because it doesn’t matter. “I didn’t knowingly take the documents” is not “exonerating,” because he’s not charged with having taken the documents.

[Bruce Hayden]

“A little late after that to say, “Actually, we just never looked.””

A bit more complicated than you portray it. Deputy Special Counsel Jay Bratt issued the subpoena, requesting any documents marked as classified. Trump’s lawyers requested extensions of time and rolling production. Bratt refused both, then used Trump’s failure to timely comply as his justification for issuing the search warrant for his MAL raid.

Compounding this, searching for (arguably) classified documents requires a sufficiently high security clearance. Trump no longer had one, since most of his had been revoked in response to a Biden WH order. So he personally couldn’t search the boxes. That left his attorneys. But most didn’t have them, and Bratt effectively slow walked security clearances for his attorneys up until Judge Cannon put his feet to the fire, effectively telling him that nothing remotely classified was going into evidence at trial as long as Trump’s lawyers couldn’t see it in advance. Their security clearances magically appeared shortly thereafter.

[David Nieporent]

A bit more complicated than you portray it. Deputy Special Counsel Jay Bratt issued the subpoena, requesting any documents marked as classified. Trump’s lawyers requested extensions of time and rolling production. Bratt refused both, then used Trump’s failure to timely comply as his justification for issuing the search warrant for his MAL raid.

You’ve repeated this fabricated claim many times here. It represents exactly zero of the facts of what happened. First, the subpoena was issued by the grand jury, not by the prosecutor. That’s a minor technicality; the prosecutor is the one who handles it, so it’s not a big deal. Second, there was no such “failure to timely respond.” Trump accepted service of the subpoena and (pretended to) agreed to cooperate, and did timely respond. He just fucking lied about it. The justification for the search (not “raid” — please stop with this silliness) was not that he hadn’t timely responded. As far as they were concerned, he had. The justification for the search was that they subsequently developed evidence that his response was a lie and that he was trying to hide other classified documents. Which was indeed the case.

Compounding this, searching for (arguably) classified documents requires a sufficiently high security clearance. Trump no longer had one, since most of his had been revoked in response to a Biden WH order.

Another falsehood, which you’ve already been called on here in the past. Trump never had a security clearance. Presidents do not get security clearances. They do not need them. And Biden therefore did not issue any order “revoking” Trump’s.

Bratt effectively slow walked security clearances for his attorneys up until Judge Cannon put his feet to the fire,

None of this ever happened, and of course none of this has anything to do with the underlying crime (which involved different personnel entirely). Bratt doesn’t decide when people get security clearances, and Trump’s lawyers got them as soon as they completed all the required paperwork.

[Bruce Hayden]

“You’re just repeating dumb talking points. First, the thing about “GSA shipped them” is just a lie. Trump did.”

Ok. You are essentially claiming that Trump backed up a moving truck to the WH, and then drove it to FL? Of course, GSA shipped the boxes. The have the moving trucks and the people to move the boxes out of the WH into their trucks, then, at the other end, into MAL.

YES, Trump requested that they do so for many of the boxes. But it isn’t clear that he did so for all of them. Last week, it came out that NARA had GSA ship several pallets of boxes to MAL, shortly before the FBI’s MAL raid. Was this in response to a request from Trump, or maybe from Deputy Special Counsel Jay Bratt? So far, no one knows whether and of the documents still marked as classified were in those boxes, or how much before the raid were they shipped (again, BY GSA).

[Bruce Hayden]

Let me add to that.

To some extent, we are talking about chain of custody. The prosecution is going to have to prove that the boxes came from the WH and weren’t opened along the way. The GSA is an Executive Branch agency, under control of Trump’s political opponent, President Biden, at the time the boxes were shipped to MAL. So, the boxes were not under Trump, but government, control during that time. The same government that indicted and is trying him. Contrast that to the situation that you essentially suggested, that Trump had personally moved the boxes, or had them moved through private means. He would have been responsible the entire time.

I think it likely that the prosecution will be able to show that the GSA routinely ships classified documents, and took the requisite precautions here. Likely, but not certain. But NARA shipping several pallets of boxes of documents much later is more problematic. They had been ordered by the Biden WH to fully cooperate with the FBI, which reports to AG Garland, under whose authority the case is being prosecuted. Who decided to have GSA transport those boxes of documents? Did the FBI/DOJ have any say in that decision? Did they have any access to those boxes before NARA had them shipped?

[David Nieporent]

The prosecution is going to have to prove that the boxes came from the WH and weren’t opened along the way.

No, it isn’t. All it has to prove is that the documents with classified markings were found at Mar-a-Lago after Trump claimed to have reviewed all of those boxes and returned everything in there responsive to the subpoena.

But NARA shipping several pallets of boxes of documents much later is more problematic.

It never happened. Period.

[David Nieporent]

Last week, it came out that NARA had GSA ship several pallets of boxes to MAL, shortly before the FBI’s MAL raid.

No, it didn’t. That’s just some Julie Kelly bullshit. Never happened. This is recycling an old story with new fabrications. All those documents were controlled by Trump and shipped by Trump’s staff at Trump’s order, a full year before the FBI search (again, not “raid.”)

[Bruce Hayden]

“Second, Trump’s defense has actually been that he has a right to steal these documents, not that he didn’t know they were there.”

Yes, the indictment assumes just that – that Trump didn’t have the right to possess those documents (and thus were not “stolen”). Judge Cannon apparently isn’t buying that. She provided the parties with two potential jury instructions, both implicitly or explicitly assuming just the opposite – that Trump did have the legal right to the documents. SC Smith was incandescent, since she did not include his preferred alternative instruction, that Trump did not have the legal right to have retained those documents. Of course, since she gave the parties two alternative jury instructions, the decision is not yet final, and thus not appealable. But it will be appealed, no doubt, to the 11th Circuit, and possibly the Supreme Court, before trial. Just not anytime soon. Boo Hoo, esp for Smith, who very much wants the trial well before the election.

It’s not an easy legal question, no matter how much Jay Bratt, in his pleadings, wanted to assume it away. Trump’s position is that an outgoing President has plenary authority to determine what are Presidential Records, and what are personal papers. Smith/Bratt seem to believe that NARA can decide (and in this case, thanks to a WH order for NARA to cooperate fully with the FBI, that means the FBI/DOJ). The Clinton Sox case would seem to bolster Trump’s claims.

[David Nieporent]

It’s not an easy legal question,

It’s a very very very very easy legal question. First, the Presidential Records Act is utterly irrelevant to the case. Second, even if it applied, the entire purpose of the Presidential Records Act was to strip the president of the power to take government documents and claim them as his.

If Cannon issues a pretrial ruling that one of those two scenarios applies, it will be taken to the Eleventh Circuit and she will be removed from the case. (If she refuses to issue a pretrial ruling at all, it will be taken to the Eleventh Circuit and she will be removed from the case.) She’s already skating on thin ice with them for utterly making up law in the search warrant phase of the case.

Smith/Bratt seem to believe that NARA can decide

No; Smith/Bratt correctly believe that Congress already decided. The PRA expressly defines what is a presidential record and what is a personal record. A president, or former president, doesn’t have any more power to decide otherwise than he has the power to decide contra to 26 U.S.C. § 61 that his compensation isn’t income and so he doesn’t have to pay income taxes on it.

[Bruce Hayden]

“ Third, even if that were Trump’s defense, and even if it were true, it wouldn’t be a defense. That might have worked back when NARA was politely asking for the documents for a year and a half, but eventually Trump was hit with a grand jury subpoena. At which point he turned over a small number of documents along with a false affidavit stating”

One problem there is that NARA (operating under WH orders to fully cooperate with the FBI/DOJ) probably didn’t have the legal authority to issue a criminal complaint to the DOJ for failing to comply with their request for the documents, and if that is the case, the subpoena was issued based on false premises. And if that is the case, it wouldn’t have been a crime to ignore the subpoena, nor to have responded untruthfully. We went through this with Mueller’s § 1001 perjury traps, as well as the one set for Gen Flynn – for Obstruction to be criminal, the act has to be material. If the NARA criminal complaint was not legitimately issued, then failure to comply is arguably not material, and thus no Obstruction.

Again something that has to be worked out by the judge before trial, and will almost assuredly be appealed by the losing party.

[David Nieporent]

One problem there is that NARA (operating under WH orders to fully cooperate with the FBI/DOJ) probably didn’t have the legal authority to issue a criminal complaint to the DOJ for failing to comply with their request for the documents,

That is not a “problem” because it’s utter gibberish. Nobody needs “legal authority” to report a potential crime (not “issue a criminal complaint”) to law enforcement. Anyone on the planet can do it, from NARA to Taylor Swift to Vladimir Putin.

and if that is the case, the subpoena was issued based on false premises. And if that is the case, it wouldn’t have been a crime to ignore the subpoena, nor to have responded untruthfully.

This isn’t even pretending to be law here. There is better legal analysis coming from graffiti on bathroom walls. There is no such thing as a subpoena being “issued based on false premises.” A grand jury is an investigative body and can issue a subpoena for any purpose related to an investigation. And of course there is never a right to ignore a court order or lie about it.

[Bruce Hayden]

Just waiting to see how often Nieporent calls me a Liar, in response to my string of responses (above). He does that a lot. I assume that much of it is our differing sets of facts. We shall see.

[David Nieporent]

…only when your lips move.

[Commenter_XY]

bernard11, then this is going to be really quick, because it is an obvious ‘slam dunk’ to you, and others. I do not think that appellate courts are very understanding of judicial, dilatory tactics. You’re all saying it is an obvious call. Ok.

There have been recent cases, Trump v Anderson comes to mind, that were ‘obvious right answers’ to many (yourself included). Until SCOTUS corrected that….maybe not so obvious.

[Sarcastr0]

Brett appears to be arguing against the existence of bad legal arguments.

[Brett Bellmore]

No, I’m arguing that people should chill out about bad legal arguments because much of current jurisprudence is constructed of them, as people would have told you before those crazy arguments won. Which means either much of current jurisprudence is shit, OR you can’t actually say an argument is bad until the Supreme Court has spoken.

Now, I’m comfortable being in the first camp, but you don’t give that impression.

[Stephen Lathrop]

OR you can’t actually say an argument is bad until the Supreme Court has spoken.

Not on everything, maybe. But on Trump cases, after the Supreme Court has spoken, count on it, you can forget about bad legal arguments, and start worrying about bad legal decisions.

[bernard11]

There is a well-known quote from some big-time business executive (in the days when the way to succeed in business was to a good job running a company) to the effect, roughly, that,

“I know half the money we spend on advertising is wasted. I just don’t know which half.”

So it is here. Many, maybe most , will agree with you that a big part of current jurisprudence is shit, but will disagree as to what that part consists of.

[Brett Bellmore]

Doubtless.

My point is simply that a person can’t cling like a barnacle to precedents that were viewed as utterly frivolous until they got made precedents by the Court, AND get all pissy about somebody making arguments you consider utterly frivolous that the Court hasn’t passed on. Not and be consistent.

If the law is Calvinball, EVERYBODY gets to play Calvinball.

And the law IS Calvinball, or else our government would look enormously different.

[Mr. Bumble]

How long before Orin counters Steve?

[Sarcastr0]

Washington, D.C. super-lawyer, Gene Schaerr
Who?

[Rev. Arthur L. Kirkland]

It’s super-bigot Gene Schaerr. The guy is known mostly for being a bigot, associating with bigots, defending bigots, trying to create safe spaces in modern America for old-timey bigots.

Super-bigot!

[Frank Drackman]

Says the Revolting Reverend who calls his Bettors Slackjawed Klingers, he’s like a white Barry Hussein Osama

[Mr. Bumble]

Are we sure he’s white? Maybe half white like Barry.

[gVOR08]

Are you saying the Reverend is bookie?

[I Callahan]

Grow up, Art. Not everyone who disagrees with you is a bigot.

[Alkali]

tl;dr: Jack Smith’s actions are unconstitutional because no one really knows whether Jack Smith is (1) a longtime DOJ attorney who was selected by and is working for US Attorney General Merrick Garland or (2) three hedgehogs wearing a trench coat.

[Zarniwoop]

best comment in this otherwise entirely-predictable and boring thread about Calabresi’s repeated inane wankery.

[Rev. Arthur L. Kirkland]

A heroine? For scheduling oral argument?

And thank God? What about Senator Blutarsky, the Tooth Fairy, Yosemite Sam, and Foghorn Leghorn?

Carry on, clingers. As best you can after a series of small strokes, apparently.

[I Callahan]

Do you have an actual argument or not?

[Frank Drackman]

For the gazillionth time, it’s “Klingers” and people often recover from Strokes, see Senator John Fetterman (I like him now) and Parkinsonian Joe.
Well Fetterman anyway

Frank

[Frank Drackman]

I think Stormy Daniels just got “45” off.
Can’t wait to see Heads exploding when he’s not convicted

Frank

[bernard11]

Frank,

I think Stormy Daniels just got “45” off.

I agree she him off, but that was 18 years ago, not recent.

[Frank Drackman]

I used that phrase on porpoise, I’m a regular Stradivarius when it comes to word smithery

Frank

[bernard11]

I’m a regular Stradivarius when it comes to word smithery

Careful. You might come to a vile end.

[Frank Drackman]

Vile end? Vileend? Dneeliv? Devil nel? Live end? I don’t get it, and I’m usually got at that Jumble (The Scrambled Word game) thang

Frank

[Hugh]

Hmmm, Calabresi didn’t happen to think of this argument when Special Counsel and inferior officer Durham convicted Kevin Clinesmith.

Someone is definitely auditioning for a role in the Trump Department of Justice.

[Magister]

Calabresi’s argument may be crazy enough for an audition, but Durham was a US Attorney when he was appointed as Special Counsel, so not actually a counterexample.

[Mr. Bumble]

Hugh gets his information from MSNBC.

[bernard11]

Not auditioning, Hugh.

Already in rehearsals.

[I Callahan]

One was a U.S. Attorney. One isn’t. Care to address that, or just whine with snark.

[Captain Motion]

Your position on this issue has been presented many times many places. It seems to have received no traction in SCOTUS, where you filed an amicus. Cannon is no heroine on this matter; she acts more like she’s on heroin. She will invite any discussion that allows her to delay bringing her master to trial. I doubt very much that she has read the pleadings, and I have no doubt that she’s utterly ignorant of their import and meaning.

[Bruce Hayden]

I think that it was mentioned by one of the Justices, in passing, in the Immunity case oral arguments, but it wasn’t the issue before the Court, and thus treated as irrelevant.

[Noscitur a sociis]

It was mentioned only in the sense that Justice Thomas wanted confirmation that even Trump’s lawyers found the argument too embarrassingly stupid to raise it before anyone but Judge Cannon. (He got it.)

[Kazinski]

You read that exchange differently that I did:

“JUSTICE THOMAS: Did you, in this
litigation, challenge the appointment of special
counsel?
MR. SAUER: Not directly. We have
done so in the Southern District of Florida
case, and we totally agree with the analysis
provided by Attorney General Meese and Attorney
General Mukasey. And — and it points to a very
important issue here because one of their….”

I don’t think its normal to raise an issue for the first time in the Supreme Court.

I read it as Thomas saying: “I sure would like a crack at that issue, you aren’t going to disappoint me are you?”

[Frank Drackman]

Coleridge wrote “Kubla Khan” on Heroin

[Zarniwoop]

no, he wrote it on laudanum, a form of opium (as in the natural poppy derivative):

Opium contains a variety of substances (fats, proteins, plant wax, latex, sugars, and others) along with some key alkaloids: morphine (10–15%), codeine (1–3%), noscapine (4–8%), papaverine (1–3%) and thebaine (1–2%)

Heroin is synthetic (diacetylmorphine) – decidedly not “opium”. Also, heroin was first synthesized by Bayer in 1897, long after Coleridge was dead.

Yep, you’re no medical doctor. Obvious before, still obvious now.

[Frank Drackman]

Not a Medical Doctor, well that’s what most Doctors think about Gas Passers so there’s that.
And I detect a little bitterness, so which Med Schools rejected you, or did you even get that far? Amazing that I remember Coleridge at all, I used those joke Liberal Arts classes to study Organic Chemistry syntheses.
But I defer to your superior experience with Heroin

Frank “don’t hate me because I’m richer than you, hate me for being better looking”

[Zarniwoop]

In the garden of forking paths, I chose law not medicine. Shrug.

O-chem was pretty easy … though I was the sort of nerd who had the 4-color pen in the front row. Got a good view of Prof Kemp’s ties, which were most excellent. (see: Kemp and Vellaccio, 1980; still have it on a shelf)

But from both an O-chem perspective and a medical perspective, no real doctor – and even more conspicuously, an alleged anesthesiologist! – would confuse raw opium tinctures and diacetylmophine. You’re a frackin’ poser.

[Frank Drackman]

Talk about fucking posers (If you’re going to curse, curse) never heard of Kemp and Chucklehead, anyone who took a real Organic course knows it’s “Morrison & Boyd”
I believe the part about the 4-color pen though, what a loser.

Frank

[Mr. Bumble]

“Also, heroin was first synthesized by Bayer in 1897,…”
Not quite true.
From Wiki:
Heroin was first made by C. R. Alder Wright in 1874 from morphine, a natural product of the opium poppy.[

[Zarniwoop]

ope, thanks! always appreciate a good fact check.

[Mr. Bumble]

“She will invite any discussion that allows her to delay bringing her master to trial.”

As opposed to the DOJ which dragged their feet for several years and are now balls to the wall to start trials with the help of friendly judges.

[Noscitur a sociis]

How do you figure? The indictment alleges conduct continuing through August 2022, and was returned in June 2023.

[Kazinski]

Its worth noting Hunter’s conduct was 2014-2018, he hasn’t been brought to trial yet either.

I’ve heard things generally move slowly in federal courts? Was that wrong?

[ObviouslyNotSpam]

So not even Trump’s own DOJ was in much of a hurry, you say?

[Brett Bellmore]

Trump’s own DOJ wasn’t in much of a hurry even to do things he directly ordered them to hurry up and do…

[Vandalia]

Good luck convincing the U.S. Supreme Court that every federal conviction is invalid since the Senate-confirmed U.S. Attorney did not handle every aspect of the case.

I have pulled a federal plea agreement up and have it in front of me right now. The U.S. Attorney did not personally sign it.

CASE 0:16-cr-00334-JNE-KMM Document 43
United States of America v John L. Steele

If a U.S. Attorney can delegate every prosecutorial function to an AUSA; then it necessarily holds that the President – unitary Executive, remember – acting through the Attorney General can also delegate any prosecutorial function to any individual he so designates.

[Mr. Bumble]

Isn’t the argument that if Smith’s authority is invalid then anyone working under him has no authority?

[Noscitur a sociis]

But Smith is himself working under the attorney general. Why is this arrangement any less valid than an AUSA conducting litigation working under a U.S. Attorney?

[Vandalia]

Exactly.

[Lee Moore]

I think the question is about the extent of the authority of the peon in question. It is not sufficient that the peon has a nominal boss, it’s whether the peon is actually supervised by the boss – ie the peon gets permission for the sorts of things that peons are not supposed to do without it being OKed by the boss.

It seems unlikely that Smith has been supervised by Garland to the same extent as a AUSA is supervised by the US Attorney to whom the AUSA is an assistant. Because that would rather defeat the point of having a Special Counsel, which is supposed to demonstrate clear water between the SC and the usual DoJ line of command.

That’s the issue and I suspect that that’s why Smith claims he’s an inferior officer not an employee.

Even if the courts in the end decided that actually the boss doesn’t need to do a whole pile of supervision and a very light touch is good enough, I’m confident that Smith and the DoJ do not want to get into the details about exactly what Smith has been doing on a leash, and what he’s been doing independently. Hence they will be keen to win on the officer point.

In Smith’s favor is that SCOTUS – if it ever gets there – will, as with the Presidential immunity case, be desperate to avoid having to consider any actual facts. Ruling that he’s an officer would allow the facts to be ignored.

[Bruce Hayden]

It’s not that Smith cannot claim authority through AG Garland but rather that he asserts having it in his own name, and not being an Officer, he can’t. What I have seen is AUSAs signing court papers in the name of the USA that they work for. The block signature (just typed within a pair of “/“) of the USA is first, followed by a real signature of the USA, with his title. This essentially says that the AUSA is signing under authority of the USA. Probably no reason that Smith, or the attorneys working for him, couldn’t have done the same with the AG, instead of USA. But they didn’t.

Several reasons why this could be problematic. In corporate law, it takes an Officer to legally bind a company. Likewise probably the government. Can a GS-1 clerk legally bind the government to a contract? Probably not. What about a staff attorney like Clinesmith (before he was fired)? Probably not. In the Justice system, papers filed in court inevitably have to show the authority under which they were filed. Smith didn’t sign under the authority of AG Garland, but as if he had the actual authority to sign in his own name. Arguably, if he is not an Officer of the DOJ (and thus US), court papers signed by him or in his name, are little different than if they had been signed by that GS-1 clerk.

Moreover, if Smith is a direct employee of AG Garland, and derives his power from the AG as a result, then he cannot be Independent. Rather, he is the agent and direct report employee of the 4th ranked Cabinet member and Department head. Given that the AG is often considered a President’s private lawyer, you could almost as easily attribute Smith’s actions to Garland’s boss, President Biden. The assumption of “independence” effectively disappears with a direct report employee to the AG.

But making things worse, Smith apparently isn’t operating under AG Garland’s budget, but rather his investigations and prosecutions have apparently been funded off budget, from an off budget fund for Independent Counsels. If that is legitimate, then why can’t the AG just fund whatever he wants off budget by calling the attorney in charge a “special counsel”? Which is to ask how a direct report employee to the AG can legitimately be funded off budget from a fund set up for “Independent Counsels”? If he has no independent authority, how can he be an “Independent Counsel”?

[David Nieporent]

Um, the independent counsel law expired in 1999. There have been none since then. “Special counsel” is more of a marketing term; it doesn’t have the same legal significance as “independent counsel.”

[Bruce Hayden]

What makes it interesting though is that Special Counsel investigations, including, esp Smith’s two, have been funded off-budget from an off-budget fund set up for paying for Independent Counsels, despite the rest of the legislation having sunset 25 years ago.

[MoreCurious]

Don’t be too hard on Cannon. Apparently she’s too busy going on (and failing to timely report) junkets to right-wing seminars at luxurious resorts to focus on the documents case.

[I Callahan]

God I hate comments like this. You don’t have an argument as to what she did was wrong, so you assign bad motives on other actions so you can dismiss anything else.

This is chickenshit.

[mike petrik]

If you don’t have the brains to drop bullshit, you have to settle for chickenshit.

[Zarniwoop]

Please adjust your snark meter.

This is piling on Loose Cannon in a manner that people with an actual sense of humor will understand. It in no way suggests she is not doing something/anything wrong.

[Kazinski]

It is interesting to note Weiss’s authority as special counsel was also challenged by Hunter.

As O pointed out in the before Weiss seems to agree with Calabresi’s framing of the issue in his response to Hunter’s challenge to his authority:

“First, for the entire history of the United States Department of Justice (“DOJ”), the Attorney General has possessed the statutory authority to designate any officer of the Department to represent the United States in any court. The appointment of counsel from “outside the government” under 28 C.F.R. § 600.3 are not the exclusive, much less
primary, source of a Special Counsel’s delegated authority, nor could such a procedural regulation limit the Attorney General’s statutory authority or confer any enforceable right on a defendant to dismiss his prosecution.
Second, the appropriation covers “independent counsel appointed pursuant to [the Independent Counsel statute] or other law.” Pub. L. 100-202, tit. II, 101 Stat. 1329, 1329-009 (1987) (emphasis added). Because the Special Counsel has been appointed by the Attorney General pursuant to statute and granted independence to conduct this prosecution, he falls squarely in the plain text of the statute.”

https://storage.courtlistener.com/recap/gov.uscourts.cacd.907806/gov.uscourts.cacd.907806.36.0_1.pdf

Calabresi and Weiss both agree that the Special Counsel have to be properly appointed as officers “pursuant to statute”.

But CFR 600.3 (a) allows the AG to appoint a Special Counsel from outside government:
“The Special Counsel shall be selected from outside the United States Government. ”

Which seems to make Smith kosher, but “selecting” isn’t the end of it, section (b) goes on to say he then has to be appropriately appointed:
“(b) The Attorney General shall consult with the Assistant Attorney General for Administration to ensure an appropriate method of appointment”

https://www.law.cornell.edu/cfr/text/28/600.3

I havent seen any statute yet that unambiguously gives Garland authority to appoint any “officer of the united states” other than a temporary appointment which would have already lapsed.

[Noscitur a sociis]

As O pointed out in the before Weiss seems to agree with Calabresi’s framing of the issue in his response to Hunter’s challenge to his authority:

What in earth are you talking about?

[Kazinski]

“the Attorney General has possessed the statutory authority to designate any officer of the Department to represent the United States in any court.”

Smith isn’t an officer.

[Noscitur a sociis]

The ability to designate any officer doesn’t mean or imply that only officers can be so designated.

[Bruce Hayden]

But not being an Officer means that they can’t represent the US in court, unless they can do so in the name of some duly appointed Officer (the AG here). A USA acting as a Special Counsel doesn’t have this issue, since he is already an Officer of the US

[SgtDad]

A Special Counsel should be a superior officer.

[not guilty]

Let’s assume, for purposes of this discussion only, that Jack Smith was irregularly appointed as Special Counsel. It does not follow that dismissal of the indictment is the applicable remedy. Jack Smith did not indict Donald Trump; the grand jury for the Southern District of Florida indicted him.

That grand jury had the authority to indict irrespective of whether a prosecutor participated or not. “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.” Costello v. United States, 350 U.S. 359, 363 (1956) (footnote omitted). The grand jury was competent to act solely on its own volition. Hale v. Henkel, 201 U.S. 43, 60 (1906).

[Mr. Bumble]

Seriously?
And which grand jury was that? The Florida grand jury or the DC grand jury?

[not guilty]

In this case the grand jury for the Southern District of Florida indicted Trump, as I wrote upthread. I surmise that some of the evidence which that grand jury relied upon was developed before the grand jury in the District of Columbia.

In the cases I cited, Frank Costello was indicted by a grand jury in the Southern District of New York. Mr. Hale was subpoenaed to appear before a grand jury in the Southern District of New York.

Do you suppose that any of that matters, Mr. Bumble?

[Mr. Bumble]

If the DC grand jury was improperly impaneled it should.

In your examples who called for the grand juries and who presented the facts for consideration?

[not guilty]

“If the DC grand jury was improperly impaneled it should.”

What facts, if any, do you believe suggest that the DC grand jury was improperly empaneled? And if it were, why would that matter in this case? Do you claim that that would affect the validity of the Florida grand jury’s indictment? If so, how?

[not guilty]

Still waiting, Mr. Bumble.

[Mr. Bumble]

As usual you ignored my question:

“In your examples who called for the grand juries and who presented the facts for consideration?”

[David Nieporent]

The answer to your question is that although in practical terms prosecutors direct grand juries, they are convened under the authority of the district court.

[Mr. Bumble]

Thanks.

[Bruce Hayden]

The grand jury was empaneled in response to a criminal complaint from NARA, that appears not to have the statutory authority to have done so. They have primarily civil remedies available to them. Moreover, there is evidence to suggest that the criminal complaint was initiated by the FBI, after the Biden WH had ordered NARA to fully cooperate with the FBI. Thus, the FBI was essentially demanding documents from Trump that they had no probable cause to request, through their cat’s paw, NARA. And if the FBI doesn’t have probable cause, they can’t use NARA as a surrogate to get the same thing. Or, so I understand the argument to be.

[not guilty]

“Thus, the FBI was essentially demanding documents from Trump that they had no probable cause to request, through their cat’s paw, NARA. And if the FBI doesn’t have probable cause, they can’t use NARA as a surrogate to get the same thing.”

Uh, the demand for production of documents bearing classified documents which Donald Trump flouted did not come from the FBI or NARA, it came via a subpoena from the grand jury in D.C. — an inquisitorial body, which does not need “probable case” to subpoena documents.

[Bruce Hayden]

But what gives Smith, and his subordinates, the authority to represent the US in court?

[not guilty]

The Attorney General is the head of the Department of Justice. 28 U.S.C. § 503. Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General. 28 U.S.C. § 516. Congress has authorized the Attorney General to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant[s] to the Attorney General or special attorney[s]” and provided that “any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal . . . which United States attorneys are authorized by law to conduct.” 28 U.S.C. § 515(a) & (b). Congress has also provided for the Attorney General to “appoint officials . . . to detect and prosecute crimes against the United States.” 28 U.S.C. § 533(1). These statutes authorize Attorneys General to appoint special
counsels and define their duties. See, e.g., United States v. Nixon, 418 U.S. 683, 694 (1974).

Jack Smith’s appointment and the specification of his duties are reflected in Order No. 5559-2022, dated November 18, 2022. https://www.justice.gov/d9/press-releases/attachments/2022/11/18/2022.11.18_order_5559-2022.pdf

[Bruce Hayden]

That says nothing about making Smith an Officer of the US. And not being an Officer, he can’t file papers with courts, in his own name, and neither can his minions. Arguably, he could have filed them in the AG’s name, but didn’t.

Let me add that most Special Counsels have been USAs, so this issue was not relevant to them, since they were Officers of the US at the time, each of them occupying one of the 92 USA Offices at the time.

[bernard11]

he can’t file papers with courts,

Excuse me, Bruce, for interrupting this enlightening legal discussion, but I have a question.

If someone, say you or I,

may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal . . . which United States attorneys are authorized by law to conduct, does it not follow as the night the day that we have the authority to file papers with the courts in connection with those proceedings?

How many legal proceedings are conducted where no one files any papers?

[not guilty]

The prosecutor in Nixon, Leon Jaworski, was not a United States Attorney when he was appointed. And I doubt that then-Attorney General William Saxbe signed pleadings in the prosecutions of Nixon’s henchmen.

[David Nieporent]

And not being an Officer, he can’t file papers with courts, in his own name, and neither can his minions.

I mean, this is completely made up. What is your authority for such a claim? Any licensed attorney who has entered an appearance can file papers with a court in his own name.

[I Callahan]

So all I need is a law degree, pass the bar, get a license, and I can file charges against someone in the name of the U.S. government?

I’m not even a lawyer and I know this is nonsense.

[Bruce Hayden]

“These statutes authorize Attorneys General to appoint special
counsels and define their duties.”

This debate has never been about Smith’s duties but rather his authority and status. There are no provisions allowing the AG to appoint Officers, except for 120 day appointments for USAs, to fill vacant positions. The AG does not have the power to create new Offices for Officers. The Constitution provides that Congress could authorize that for Department heads, and several of them have that power. The AG does not. From that point of view, the order by the AG naming Smith as a Special Counsel is, thus, irrelevant.

[not guilty]

Suppose there is a problem with the appointment of the Special Counsel. How does that invalidate the indictment found by the grand jury in the Southern District of Florida, so as to require dismissal of the indictment?

Donald Trump’s motion to dismiss cites no authority in support of dismissal of the indictment as a remedy. https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.326.0.pdf Neither does Trump’s reply to the government’s response to the motion to dismiss. https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.414.0.pdf

If Jack Smith’s appoint were found to be problematic, the United States Attorney for the Southern District of Florida could step in and pursue the pending indictment. He could even hire Smith and Smith’s staff as assistants. Trump’s motion is a red herring.

[Purple Martin]

On the RECENT VOLOKH POSTS list, read “Judge Aileen Cannon is a Heroine” and immediately thought Calabrese’s raving again.

That requires no unusual insight of course.

[ObviouslyNotSpam]

It’s exactly the kind of absurd hyperbole you’d expect Donald Trump to say (except he would have put it in ALL CAPS).

This is not a coincidence.

[I Callahan]

Knee jerking again?

[not guilty]

If Judge Loose Cannon dismisses the indictment or any count thereof prior to trial, the Government has the right to appeal that order pursuant to 18 U.S.C. § 3731. Cannon has assiduously avoided issuing any appealable orders, so that may present a dilemma for her.

The Eleventh Circuit Court of Appeals has twice reversed Judge Cannon at the investigative stage of this case. In other cases where that court has reversed the same district court multiple times in the same case, the Court of Appeals has ordered that upon remand the matter be reassigned to a different judge. United States v. Plate, 839 F.3d 950, 958 (11th Cir. 2016); United States v. Gupta, 572 F.3d 878, 892 (11th Cir. 2009); United States v. Martin, 455 F.3d 1227, 1242 (11th Cir. 2006); United States v. Remillong, 55 F.3d 572, 577 (11th Cir. 1995); United States v. Torkington, 874 F.2d 1441, 1447 (11th Cir. 1989) (per curiam); United States v. White, 846 F.2d 678, 696 (11th Cir. 1988).

[Bruce Hayden]

Good luck with that. With your logic, Trump could thus ask for a different judge in his DC case if he wins both his § 1512(c) and Immunity cases there. Or does this rule only allow for reassignment if the defendant is the one reversed, and not the government? That would seem backwards, and extremely unfair. The government is the party that is always supposed to be coloring inside the lines.

[not guilty]

“With your logic, Trump could thus ask for a different judge in his DC case if he wins both his § 1512(c) and Immunity cases there.”

Uh, no. The ruling denying immunity to Donald Trump came from Judge Tanya Chutkan. The dismissal of one count of the indictment based on the scope of 18 U.S.C. § 1512(c) came from Judge Carl Nichols in a different case, to which Trump is not a party.

[Bruce Hayden]

Doesn’t matter. Both cases affect the DC case, and Immunity affects the FL case.

Who, in particular, is going to reassign the case? Yes, Smith wants a different judge in FL, but Trump wants a new one in DC, NYC, and GA, and may just get one in GA. But all she probably needs to do is list all of the questionable things that Smith and the DOJ have done in the FL case, starting with their DC grand jury (not disclosed to the ED FL judges or magistrates) to pushing hard for a quick trial, while slow walking security clearances to Trump’s attorneys, thus justifying not disclosing the disputed documents to them, to classifying all of the origination documentation, to ignoring her repeated orders that the case was on hold until the Supreme Court’s immunity decision, etc. The judges who would have to replace her are her colleagues, not his. They very likely see him as a high powered attorney from DOJ HQ in DC, who expects them to cater to him. Not going to fly, no matter your wet dreams of replacing her.

[not guilty]

“Doesn’t matter. Both cases affect the DC case, and Immunity affects the FL case.”

Wrong. Donald Trump is being prosecuted in Florida for conduct occurring after he left office as president. Any immunity which he claims for official acts as president would be simply inapplicable.

The cases I cited upthread all involved the Eleventh Circuit having reversed the same district judge multiple times in the same case. I surmise that reassignment after remand would fall to the presiding judge of the district court. Trump to this point has not obtained relief on appeal from any district court ruling.

[Bruce Hayden]

I think that you are very wrong here. But if I am not, that delay, with the new judge trying to make room in his docket, and come up to speed for the case, is likely to push the case into at least fall, and more likely 2025.

[not guilty]

So what? If and when Judge Loose Cannon issues a pretrial order that is appealable by the prosecution under 18 U.S.C. § 3731, resolution of such an appeal will take months. There was never any realistic prospect of Cannon allowing the case to come to trial promptly, so that delay would be insignificant.

[ObviouslyNotSpam]

Oh, the case should definitely continue in 2025, if Trump manages to delay justice until after he loses the next election. It’s a strong case, and his guilt is apparent to me even at this point. Why would it be dropped? No, the only way this case will go away would be for Trump himself to order his AG to kill it.

[Bruce Hayden]

Well, I doubt whether you have dug into the legal issues sufficiently to be that secure in your knowledge. The prosecution have assumed away a number of very unique legal issues, including:
– did NARA have the statutory authority to generate a criminal referral to the DOJ for failing to return documents that were in the constructive possession of Trump?
– was the empaneling of the grand jury in response to that criminal referral legitimate?
– who gets to determine what is a personal paper, and which is a Presidential Paper? NARA? Or Trump?
– did Trump effectively declassify the allegedly classified documents by ordering them shipped to MAL?
– does it matter that the prosecution calls the documents in question National Defense information, instead of Classified?
– can Executive Branch employees of a subsequent President second guess the Previous President’s determination of what is National Defense information?
– can a successor President revoke or otherwise terminate Executive Privilege and Immunity of his predecessor, for acts done while the predecessor was President?
– does the fact that Smith is almost assuredly not an Officer of the US matter?
– does it matter that the two Smith prosecutions are being funded off-budget through an off-budget Independent Counsel fund matter, esp since he is nowhere near Independent, being a direct report employee of AG Garland, the 4th ranked member of Biden’s cabinet (in an election year, where his boss is running against, and behind, Trump)?
– Etc.

[David Nieporent]

In order:
1) No. No such “statutory authority” is needed. It’s inherent in being a human being. “Criminal referral” has no legal meaning.
2) Yes. A grand jury can investigate crimes, can investigate whether crimes have been committed, and can even conduct an investigation just to assure itself that no crime has been committed.
3) Neither. Congress.
4) No.
5) Yes, because it means that even if Trump had expressly declassified the documents he still violated the Espionage Act.
6) A sitting president can decide that certain information need not be kept secret, that it would be beneficial to the U.S. national security to release it. Once it has been released, nobody can argue as a matter of law that it shouldn’t have been. A former president, on the other hand, cannot retroactively decide that something should’ve been released.
7) Yes, and no, respectively. But of course the notion that a former president has immunity is crazy talk.
8) Assuming you’re correct: no. Even if the Calabresi arguments about Smith’s status were totally correct, all it would mean is that someone else would have to sign off on Smith’s decisions. Not that the case gets dismissed.
9) Not legally it doesn’t matter.
10) Etc.

Throwing spaghetti at the wall and hoping something sticks is the sign of utter desperation.

[zhadum]

The real question, no matter what way you think about this case – is do you really think that Cannon is even remotely capable of writing an opinion that will not get eviscerated by the court of appeals?

[not guilty]

Judge Loose Cannon has been careful to this point not to issue an order which is appealable as of right prior to trial by the Government. I surmise that she is doing so deliberately in order to frustrate the prosecution. Her day of reckoning is coming, however. Fed.R.Crim.P. 12(d) requires that the court must decide every pretrial motion before trial unless it finds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the deferral will adversely affect a party’s right to appeal.

[Bruce Hayden]

Good luck with that too. Yes, she may have frustrated Smith by supplying both parties with two alternative jury instructions, neither of which supported Smith’s case. But the case was on hold already, and this was, to an extent, a slap down, since they had repeatedly ignored her case suspension order. Of course, that legal issue (who had the right to the documents the FBI seized – Trump or NARA/FBI) will have to be resolved before trial. As will others (such as whether Trump could have declassified them through ordering them shipped to MAL, whether bureaucrats can override POTUS as to whether documents can be reclassified by a later Administration, etc). And it is likely that the losing parties to those decisions will appeal them to the 11th Circuit, and if Trump loses, to the SC.

All this takes time. A lot of time. Smith wanted to rush to trial (in March) with the trial judge just accepting his interpretations of law. Never was going to happen. Without Smith’s creative, LawFare type, statutory interpretations, he would never have had a case. And he should have expected that a deep pocketed defendant, like Trump, was going to contest all of his questionable interpretations. Moreover, Smith recently admitted that the evidentiary chain of custody for some (many? No one knows yet) of the documents Trump is charged with mishandling, are not accurate. Destruction of exonerating evidence? Because of that, trial preparation is further suspended until that can be resolved. Plus, in documents Cannon ordered declassified and unredacted, it was recently disclosed that the investigation was initiated in consultation between the WH and AG, very early in the Administration.

[David Nieporent]

Of course, that legal issue (who had the right to the documents the FBI seized – Trump or NARA/FBI) will have to be resolved before trial. As will others (such as whether Trump could have declassified them through ordering them shipped to MAL, whether bureaucrats can override POTUS as to whether documents can be reclassified by a later Administration, etc). And it is likely that the losing parties to those decisions will appeal them to the 11th Circuit, and if Trump loses, to the SC.

None of these allow for interlocutory appeals as of right. (Of course, if she dismisses the case, Smith can appeal; that wouldn’t be interlocutory. Or if she issues an order that functionally dismisses the case — such as her insane what-if-the-statute-enacted-specifically-to-keep-the-president-from-stealing-documents-actually-authorizes-him-to-steal-whatever-he-wants jury instruction — then Smith can either obtain an interlocutory appeal or apply for a writ of mandamus.)

[Rev. Arthur L. Kirkland]

Steven Calabresi demonstrates what Josh Blackman would be like if Blackman had 20 more years of experience, affiliations with legitimate law schools, and a series of strokes.

[bernard11]

The big difference I see is that Calabresi is a well-established Trumpist nutcase, while Blackman is working hard to get through the probationary period.

[Kazinski]

“Like Ilya, I am appalled by Trump’s behavior on January 6, 2021, and I will not vote for him under any circumstances because of it.”

– Steven Calabresi
1/7/24 on this website

[Frank Drackman]

Peoples change their minds. Parkinsonian Joe used to support Segregation, Barry Hussein Osama was against Some-Sex-Marriage, I used to hate the Designated Hitter.

Frank

[ObviouslyNotSpam]

Was that before or after he began his notable decline?

[I Callahan]

Grow up.

[SRG2]

Cannon will rule against Smith so that he will have to appeal and hence more possibility of delay.

[Kazinski]

Thomas seemed like it was something he wanted to hear more of in oral arguments in the immunity case. But there may be more smoke signals before the hearing in 6 weeks. If Goresuch or Alito writes a line or two in a concurrence or dissent when the immunity case is announced that will signal there is a good chance Cannon will be affirmed if Trump prevails, and a good chance cert will be granted even if he loses.

[not guilty]

“If Goresuch [sic] or Alito writes a line or two in a concurrence or dissent when the immunity case is announced that will signal there is a good chance Cannon will be affirmed if Trump prevails, and a good chance cert will be granted even if he loses.”

If Donald Trump loses the instant motion in Florida, appellate review could be had only after conviction and sentencing. If the appointment of Jack Smith were somehow defective, how would he not be a de facto officer?

[Brett Bellmore]

Maybe you’re only a de facto officer until somebody points out the deficiency? Retrospectively de facto, I mean; A form of reliance.

[not guilty]

[duplicate comment deleted]

[Rev. Arthur L. Kirkland]

I hope everyone associated with faculty hiring decisions at strong, mainstream law schools is reading Prof. Calabresi’s contributions to this white, male, right-wing blog and considering “should I expose my school to this level of diminution of reputation and quality by hiring a movement conservative for a faculty position?”

I sense UCLA, Georgetown, and a few others have learned this lesson through experience. Other schools, however, might benefit from Prof. Calabresi’s illumination of this point.

(The problem at George Mason is unlikely to be addressed while a Republican is governor.)

[Frank Drackman]

Ever been to Mount Rushmore? 4 White Males, all of whom would be considered “Right Wing” in todays environment where Eric Balls-Smell has a seat on the House “Homeland Security” Committee. Constitution?, Declaration of Independence, written and signed 100% by Honkies. Our one (half) Afro-American POTUS, an effete snob who throws like a girl (and as a fellow Person of Southpawness, it pains me to say that)

Frank

[Michael Masinter]

Judge Cannon eventually will rule against Trump on all the major pretrial motions to avoid reversal, but on a schedule that pushes the trial into next year. If the trial goes forward after the inauguration because Trump lost the election, she’ll grant a Rule 29(a) motion at the close of the government’s case, a ruling that is not appealable because of the double jeopardy clause.

[Mr. Bumble]

Everyone’s an expert.

[Roger S]

Good. No ex-President should have ever been charged with such trivialities. He should be able to keep some copies of his papers. Yes, Cannon should just let the Biden DoJ have its say, and then dismiss the case, unless they find something a whole lot more damaging than the trivialities found so far.

[ReaderY]

The principle argument is statutory, not constitutional. The argument is that Congress has authorized the Attorney General to appoint only Senate-confirmed officers of the Justice Department to the office of Special Council, and Jack Smith was never confirmed by the Senate to a Justice Department office.

A great deal of the post – whether Judge Cannon is a heroine for holding a hearing on this argument, whether a Special Prosecutor is a superior or an inferior officer, the supposed reasons why Congress wrote the statutes the way it did (assuming Mr. Calabresi’s interpretation is correct ), all tend to obscure and draw attention away from Mr. Calabresi’s principal legal argument by surrounding it in drunken frat-party pep-rally haze of irrelevant rah-rah partisan rhetoric.

I acknowledge Mr. Calabresi has made an actual legal argument. But a reader has to sift through quite a bit of rah-rah partisan cheerleading to find it, buried deeply in the middle.

It was by no means obvious from a superficial reading of the post that Mr. Calebresi actually had something to say.

[Lee Moore]

I tend to agree that it’s a bit of a muddle. And yes the “heroism” of the judge is a strange idea.

As to the substance, I think it is a little bit more complicated.

Ultimately what is at issue is – is there a legal rabbit that can be pulled from the hat, which will allow Mr Trump to gambol off across hill and dale, home free ? Without having to bother with tiresome details like the facts of the particular case.

There are a number of hurdles in the way :

1. If it emerged that Smith was not lawfully appointed to do what he’s been doing – what difference would that make, if any ? If none, Trump doesn’t get to gambol.

2. If it does make a difference then has Smith been lawfully appointed as an “officer” – again – does it matter ? There’s no doubt that even if he isn’t an officer, he’s an employee of the DoJ. Is it lawful for a mere employee to do what he’s been doing ? If it is, then there’s no Trump gambolling.

3. But if he has to be an officer, what kind of an officer is he ? If he’s a principal officer then he must be appointed by the President under Article II. Which he hasn’t been. But if he’s an inferior officer, he doesn’t need to have been appointed by the President. He could be lawfully appointed by the AG, if (and only if) Congress has vested the power of appointing inferior officers in the AG. So is he an inferior officer ?

4. Well, he claims to be, but is he ? And that depends, as you say, on the detail of the statutory authority of the AG to appoint inferior officers. Which is primarily what Calabresi’s argument is about. I think. Though he might be trying to stop at 3.

But you only get to 4 if you can skip past 1,2 and 3 with no difficulty.
And as I understand it, Calabresi’s argument is intended to force you into answering 4, by answering 2 with a firm “Hell No !” and by vacillating on 3 as to whether Smith is a principal officer or not.

So the argument is muddled as he’s trying to cover two or three bases at the same time. Or, to use the technical term, throwing spaghetti at the wall.

But the main point is a statutory one, about 4.

I think.

[Frank Drackman]

Wasn’t the “Muller Report” supposed to have finished “45” off 6 years ago?

[Please, Daivd, Seek Help]

This is really bizarre. It’s not heroic for a judge to schedule a hearing to hear a legal argument. This is like really baffling, scrambled-eggs-for-brains thing. Do you have a concussion?

[anon_e_moose]

28 U.S. Code § 543 states that “The Attorney General may appoint attorneys to assist United States attorneys” and 28 USC 515 says that “any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct” and that “Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney”

[nonzenze]

Smith’s appointment as an inferior officer was thus unconstitutional, and therefore the cases against former President Donald Trump, which Smith is prosecuting in Florida and in Washington D.C. must be dismissed.

Even assuming the (contested) premise, this remedy is bonkers. If Smith’s appointment was unconstitutional, then the proper remedy would be to forbid him from continuing and order the DOJ to substitute someone lawfully appointed.