Preserving the Issue of Whether Morrison v. Olson Should Be Overruled

The Special Counsel is squarely on notice that the question of whether Morrison’s holding should be preserved or overruled is at issue.

Justice Scalia's dissent in Morrison v. Olson is the cornerstone of conservative legal thought. Every year I teach it, I gain new insights into the separation of powers. Nearly four decades later, the opinion gets better with time. (Justice Kagan said that, or at least something like that.) Alas, Chief Justice Rehnquist's majority opinion remains controlling law. The Court had no occasion to overrule Morrison, but it has been eroded in cases like Seila Law and Arthrex. However, Special Counsel Jack Smith's prosecution of Donald Trump presents just that opportunity for Morrison to be overruled. And I personally made sure of it.

During oral argument in Judge Cannon's court, I preserved the issue of whether Morrison should be overruled by the Supreme Court. It was the very last thing I said before I sat down.

MR. BLACKMAN: I will make just one last point, Your Honor, and then I'll sit down. Morrison v. Olson, of course, is precedent. I don't know that the defendants have asked to preserve the issue over whether Morrison should be overruled. Maybe I can. I will. But I think this is a precedent that has been chipped away by Seila Law and other cases. And I think it's at least fair to acknowledge that this stands on a shaky foundation.

THE COURT: All right. Thank you very much. I appreciate your assistance.

MR. BLACKMAN: Thank you, Your Honor.

[ECF No. 647, p. 112.]

During rebuttal, James Pearce, the lawyer for the Special Counsel, referenced my remark, though I don't think he quite got what I was trying to do.

MR. PEARCE: Now, I want to spend just a moment, if I could, on the difference between "employee" and "officer." I think that was the thrust of what I understood the Tillman amicus brief and Mr. Blackman -- although Mr. Blackman was wide-ranging, I think he asked this Court to overrule Morrison v. Olson, which I don't think is in any way presented. But I want to focus on what the brief was about. [ECF No. 647, p. 155 (bold added).]

But Judge Cannon understood exactly what I said. Her opinion expressly referenced the preservation of this issue in Footnote 54:

Post-Edmond, the viability of Morrison has been called into question. See, e.g., N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 315 (2017) (Thomas, J., concurring) ("Although we did not explicitly overrule Morrison in Edmond, it is difficult to see how Morrison's nebulous approach survived our opinion in Edmond. Edmond is also consistent with the Constitution's original meaning and therefore should guide our view of the principal-inferior distinction."); Concord Mgmt. & Consulting LLC, 317 F. Supp. 3d at 617 & n.8 (citing cases and scholarship). Nonetheless, because it has not been overruled, the Court proceeds to apply the Morrison test alongside Edmond. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (stressing the Supreme Court's "prerogative of overruling its own decisions"). Defendants have not argued for the overruling of Morrison in this court, although the matter was raised at argument by the Landmark Legal amici. [Tr. of Oral Argument (June 21, 2024)] ECF No. 647 p. 112; ECF No. 364-1 (criticizing Morrison). [slip op. 71 n.54 (bold added).]

A few hours after my oral argument concluded, I wrote about Mapp v. Ohio. In that case, the ACLU as amicus asked the Supreme Court to overrule Wolf v. Colorado. And the Supreme Court did just that. I wrote, with some degree of self-awareness, that it would be even better for the issue to have been raised by an amicus in the lower courts:

More relevant to the present day, the holding of Mapp suggests that an Amicus who is invited to participate can ask the Supreme Court to overrule a precedent, and the issue is not waived. Indeed, the Amicus was allowed to make this request for the first time before the Supreme Court, even where it was not raised in the lower court litigation. The Supreme Court apparently did not see any problem with waiver or the party presentation rule here. If what the ACLU did was proper, it stands to reason that a similar request could be made by an amicus who is invited to participate in the lower courts, if only to put everyone on notice that a precedent is in doubt, and to preserve the issue for review by the Supreme Court.

Another relevant precedent is Teague v. Lane (1988). In that case, the plurality, per Justice O'Connor, addressed a retroactivity issue that was only pressed by amicus:

The question of retroactivity with regard to petitioner's fair cross-section claim has been raised only in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim. See Brief for Petitioner 21-32; Brief for Respondent 31-38. Moreover, our sua sponte consideration of retroactivity is far from novel. In Allen v. Hardy, we addressed the retroactivity of Batson even though that question had not been presented by the petition for certiorari or addressed by the lower courts. See 478 U.S. at 478 U. S. 261-262 (MARSHALL, J., dissenting). See also Mapp v. Ohio, 367 U. S. 643, 367 U. S. 646, n. 3 (1961) (applying exclusionary rule to the States even although such a course of action was urged only by amicus curiae).

In dissent, Justices Brennan and Marshall expressed astonishment that the plurality reached this issue based on the representation of an amicus:

Astonishingly, the plurality adopts this novel precondition to habeas review without benefit of oral argument on the question, and with no more guidance from the litigants than a three-page discussion in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24.

But such is the law of issue preservation before the Supreme Court. Unless a different set of law applies nowadays. 

Given Mapp and Teague, from my vantage point, the issue of whether Morrison v. Olson should be overruled has been preserved. And the Special Counsel is squarely on notice that the question of whether Morrison's holding should be preserved or overruled is at issue.

With the benefit of hindsight, Attorney General Merrick Garland's decision to appoint Smith may become one of the greatest blunders in DOJ history. Or, from a different vantage point, his decision may lead to the greatest strengthening of the President's Article II power in Supreme Court history. First, the investigation led to the sweeping immunity ruling in Trump v. United States. Second, the prosecution may lead to the special counsel regulations being called into question by the Supreme Court, if not the overruling of Morrison. Third, none of these cases yielded a trial, let alone a conviction, before the election. Fourth, despite everything that has happened over the past four years, Trump is still leading in many polls, and may still be reelected. What good did any of these proceedings accomplish? Garland would have been better off indicting Trump in January 2021, or doing nothing at all.

Comments

[Krayt]

Someone didn't close italics on the main page, as every word, sentence, and widget is italics all the way down now!

[SRG2]

Wherein Blackman reveals himself to be an authoritarian POS - because clearly he thinks that Trump escaping trials for crimes he committed is a worthy outcome legitimised by his being president.

[Riva]

So, advocating for the respect of the constitutional structure of separation of powers is “authoritarian,” but salivating over the political prosecution of the leading opposition candidate is somehow not? Uh huh. I doubt even you really believe that.

[JasonT20]

You should look into the "unitary executive theory." Or the derogatory "imperial presidency" term used to deride it.

Critics of this idea claim that democratic nations that have backslid into autocracy often see their presidents taking more and more power for themselves, with less and less accountability. It is really hard not to see Republicans pushing the U.S. in that direction, whether they intend to or not.

[Bob from Ohio]

"presidents taking more and more power for themselves"

Like forgiving student loans? Or allowing illegal immigrants who came as children to stay in the country?

The imperial presidency was invented by FDR and LBJ.

[DJK]

Yep, the hypocrisy from the left is astonishing here. Or would be, if I could be astonished by anything leftists do.

[TheAmazingEmu]

So I think it's useful to distinguish between two categories of executive power that your two examples illustrate:

The first is the President's power to enact legislation passed by Congress. This often uses creative readings of statutes to find authority to act. The loan forgiveness one is an example of this.

The second would involve the "inherent" authority of the President. A lot of unitary executive proponents believe there is significant inherent authority of the President to do things not directly stated in the Constitution but assumed under the definition of "executive power." This includes things like warmaking power, of course, but also the power to prosecute (or not prosecute), arrest or not arrest, etc. The decision to not engage in removal proceedings against certain classes of immigrants comes from this power (as well as the practical realities that the budget isn't big enough to do everything Congress has said to do).

A lot of the concerns about the imperial Presidency do concern the latter issues. If it's the former, Congress can always repeal a law or, at least, the President has to find a law he can say authorizes it. There's at least some check there. But arguments that the President has exclusive authority to do something has no natural check to it. It becomes government by fiat to whatever extent authorized by courts.

[M L]

The so-called “unitary executive theory” is plainly and precisely what is required by the Constitution, nothing more or less.

Put one way, the unitary executive is the proposition that the federal government has three (and only three) branches. It is something you learn in middle school.

This business about “presidents taking more and more power for themselves, with less and less accountability” is a real problem. But that problem isn’t with unitary executive, properly understood. Yours is a common misconception.

The unitary executive has nothing to say about how much power the executive branch has. It is completely consistent with the most minimalist view of executive branch power possible.

What the unitary executive does mean, however, is that whatever power does reside in the executive branch is vested in the President. It is not, and cannot constitutionally be, independently vested in the swampy morass of alphabet soup agencies and the unelected bureaucrats – those are all just parts of the executive branch and under the President.

If you think the executive branch has taken on too much power and lacks accountability, the unitary executive is actually the best hope for fixing that, since it places power squarely the single most politically accountable individual that exists, and this is the only thing that could force Congress to reassert their powers since Congress is delegating to a political rival rather than a faceless bureaucrat.

[Sarcastr0]

ML, have you read any of the originalist scholarship about what the Founders thought of the executive power?

I find Julian Davis Mortenson the most readable, but there are lots of others and they bring the receipts via founding era correspondence.

Your reading does not comport with original intent with respect to how delegation to the executive power worked – if Congress wants to put conditions on the delegation, that was pretty normal.

Increasing accountability by arrogating authority into one person is…a stupid idea if you understand how authority is in tension with accountability.

[Kazinski]

"if Congress wants to put conditions limits on the delegation, that was pretty normal."

There is a difference.

[Sarcastr0]

Is this a difference that matters once you twig to one of those penumbral emanations I hear so much about?

[M L]

It appears you are referencing the issue of delegation or nondelegation, which is a different issue, not the same thing as the unitary executive.

My reading comports with the text, the federalist papers, and mountains of evidence about original intent/meaning/etc.

The fact that there are various checks and balances, and that Congress has a very strong legislative power and can legislate many things, does not address the basic issue – those questions only go to what is the precise scope of the executive power, not the question of in whom is it vested.

Per wiki, even Lawrence Lessig and Cass Sunstein write “No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version.”

[Sarcastr0]

My reading comports with the text, the federalist papers, and mountains of evidence about original intent/meaning/etc.

Well that blizard of ipse dixit sure has me snowed! Julian Davis Mortenson did some exhaustive corpus linguistics and published an actual paper with the details, not just name-dropping sources.

The fact that there are various checks and balances, and that Congress has a very strong...
Here come the vibes. So much for plainly and precisely.

You are not arguing for the weak unitary executive so don't play semantic games.

[Bob from Ohio]

"exhaustive corpus linguistics "

Doesn't sound so impressive if you call it "language analysis" but you do love your Latin.

These are the grant of powers to the branches:

All legislative Powers herein granted shall be vested in a Congress of the United States

The executive Power shall be vested in a President of the United States of America.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

See, in Article III, when Congress is given power to split power in another branch, it is given it. No such authority exists in Article II.

No one doubts that the Supreme Court can control "inferior courts" but you think the President can't control all inferior executive officers.

[Sarcastr0]

What is the executive Power, and what is vesting?

The Supreme Court's authority over inferior courts is statutory.

This is what happens when you just say stuff you feel is true and don't see what other people say about it.

[Artifex]

"Well that blizard of ipse dixit sure has me snowed!"

Absolutely ! It snowed you so much that you forgot what "ipse dixit" means. Since you have forgotten, "ipse dixit" is fundamentally "baldy asserting", i.e. your personal standard of argument. In this case, ML gives both an argument and even a quote by Lessig and Sunstein making it a little different than the Sarcastro special. The fact that some badfaith bozo chooses to ignore both argument and quote does not turn it into ipse dixit.

[Sarcastr0]

So I provided a quote in italics right before I said what was ipse dixit. Traditional readers might think there was a connection there.

You've never been one for tradition, though.

[Artifex]

I am stunned by your brilliance Sarcastro ! First, we chop a section out of an argument. Then we ignore both the cite and the actual argument and claim the section that we chopped out is ipse dixit because there is no cite or argument. You can then claim victory with your marvellous debating prowess. Who can stand before an intellect like Sarcastro's !

I must admit, this does clear up one mystery. I begin to understand why you are so adamant that Joe Biden is not showing signs of dementia. When placed in the mix of you and your peers, Joe has comparatively exceptional cognitive powers.

[Sarcastr0]

You're quite the doodoohead.

I'd love to say otherwise, but this reading comports with Earnest Hemmingway's journalism, Noszik's "Anarchy, State, and Utopia," the Declaration of Independence, and mountains of evidence about doodoheadness character/elements/posting etc.

How you gonna stand against my incredibly sourced argument now, huh?

[M L]

Ipse dixit and corpus linguistics huh? Well dang, you got me there. No citations or evidence, just:

"Your reading doesn't comport with original intent"

"My reading does comport with original intent"

"Ipse dixit!"

[Sarcastr0]

I mean, I had some citations to someone doing the work, if you wanted to look it up.

Here’s a link if you’re lazy: https://repository.law.umich.edu/articles/2062/

It’s a grinding argument, but it is hard to dismiss if you want to be originalist and argue for the unitary executive.

And if you don’t like that one, it’s hardly the only originalist analysis of the unitary executive.

Meanwhile you just post hot takes. Not really meeting effort with effort here, ML.

The main scholar I’ve seen on the other side is Yoo, who uses it largely for Presidential immunity when he does war crimes, because Yoo fucking sucks.

Ipse dixit referred to you invoking sources without actually, you know, going through and saying how they support your thesis.

[M L]

I read the abstract of your linked article and it sounds very interesting!

However, I don't see where it contradicts the unitary executive.

The article contends that the longstanding view that "the executive power . . was originally understood to include a bundle of national security and foreign affairs authorities" is wrong. Basically the executive power has been viewed as including various unenumerated powers relating to national security and foreign relations, and this article argues against that conventional view.

This is a very interesting point and I'm open to the argument. But as I said above, the unitary executive isn't about what, it's about who. The unitary executive is compatible with a minimalist view of executive power such as set forth here. This goes again to what I said above is a common misconception. I believe the Bush administration helped muddy the waters on this point, as the unitary executive was a big topic around then and it seems it was conflated with the separate issue of the executive asserting various national security, military and foreign affairs powers.

[David Nieporent]

What the unitary executive does mean, however, is that whatever power does reside in the executive branch is vested in the President. It is not, and cannot constitutionally be, independently vested in the swampy morass of alphabet soup agencies and the unelected bureaucrats – those are all just parts of the executive branch and under the President.

As just one example of how that's wrong, the constitution expressly says that Congress can vest the power to appoint inferior officers in the heads of departments rather than in the president.

[Bob from Ohio]

"appoint inferior officers"

Yes it can. What does that say about the power these officials exercise? Or their removal?

These inferior officers are still subject to supervision and control by the president.

[JoeFromtheBronx]

that the POTUS can apply "executive power" to carry out the laws of Congress on such issues.

Unlimited removal power is not necessary for that to be in place. History shows Congress -- from the first Congress -- did not act as if that was true. Executive officers had certain duties by statute.

(Kagan in Seila Law provided the details)

It would not be "faithfully executing" the law to remove them for simply doing their jobs without cause.

Also, note how "the executive power" is cited in Art. II, sec. 1.

Then, Art. II, sec. 2-3 provides other roles for the POTUS. One is asking for opinions in writing from heads of departments. That is an additional provision.

Anyway, just what "executive power" means divided the founders. Just quoting the text isn't going to answer the question as if it was self-evident akin to 2+2=4.

[David Nieporent]

Yes it can. What does that say about the power these officials exercise? Or their removal?

Nothing. But it does say that the president is not the only reservoir of power in the executive branch, as the unitary theory contends.

[M L]

It does not contradict the unitary executive any more than appointments requiring advice and consent of Congress contradict it.

[Riva]

It’s called checks and balances Dave you abysmal idiot

[Kazinski]

Yes, and those inferior officers still serve at the Presidents pleasure, as does their boss that appointed them.

The whole point of the inferior officers clause is they knew the president would get too busy to nominate and commission every postmaster, prison warden and customs officer.

[Riva]

Don't know what other democratic nations you're talking about JasonT20, but the US is not "backsliding" into autocracy. Under the US Constitution, Article II §1, cl. 1 vests “executive Power” in “a President of the United States of America.” If you don't like it, advocate to amend the constitution.

[David Nieporent]

Forbidding the sitting president from prosecuting a former president for breaking laws duly enacted by Congress is not respecting the so-called constitutional structure of separation of powers. It is flouting it.

And of course there is no "political prosecution." Trump is nothing more than a common criminal.

[Riva]

Not sure what you mean by “so-called constitutional structure of separation of powers.” It would seem that you don’t really know what separation of powers is and you probably shouldn’t be opining here, Dave.

[DJK]

The problem is that most of the prosecutions are based on novel interpretations of the "laws duly enacted by Congress." This is certainly the state of affairs for the federal 1/6 case (and the GA RICO case and NY no-one-has-ever-provided-a-reasonable-legal-theory-is case). The one case where Trump probably committed crimes in the manner proscribed by law is the classified documents case. And even there, there are enormous questions, the biggest being whether he had unilateral power to declassify and whether there was any need for him to follow some procedure to do so. Stop pretending like this is anything other than pure will to power lawfare.

[David Nieporent]

The problem is that most of the prosecutions are based on novel interpretations of the “laws duly enacted by Congress.”

There are four prosecutions. Two of them are not based on any interpretation of the laws duly enacted by Congress, since they are state prosecutions. The Florida one has no novel interpretations (other than the ones offered by Judge Cannon); it involves routine applications of laws governing the handling of NDI and obstruction of justice. And the DC one? I don't see anything novel about the interpretations under that indictment. Obviously the application to these specific facts is novel, but that's because these specific facts are themselves novel; nobody has tried to overthrow the government in that manner before.

[Michael Ejercito]

There was no attempt to overthrow the government, not by any reasonable definition.

[Krayt]

If you truly had concern for rule of law, you’d be bothered by innumerable initiatives against a political opponent to git ‘im before an election.

He needs to lose, but not for any reasons you think. And your hatred is not so important as to ignore protections against the king(-makers) turning the investigative and prosecutorial power against his political opponens. Or expropriating the opponent’s estate.

[JasonT20]

If you truly had concern for rule of law, you’d be bothered by innumerable initiatives against a political opponent to git ‘im before an election.

Running for office can't be an escape from legal consequences, otherwise, any opposition officeholder running for reelection or other opposition candidates could simply claim "lawfare" anytime they are prosecuted for anything. If the evidence is there to justify a prosecution, then a political candidate should be prosecuted just like anyone else. The rule of law has to work neutrally and apply to every person equally.

[Riva]

As for Florida, putting aside the fact that the specific Presidential Records Act rendered this matter a non-criminal, administrative dispute at best, the more salient point is the Constitution doesn’t allow the AG to appoint a special counsel to prosecute anyone without statutory authority (assuming Smith was just an inferior officer although his powers exceeded those of a US Attorney). And as for the j6 nonsense, we’re not talking about any candidate for office. We’re talking about official presidential actions. You do understand that that that Smith prosecution sought to criminalize conduct occurring while President Trump was in office, don’t you?

[David Nieporent]

The Presidential Records Act literally has nothing to do with the Florida case, and it’s extremely audacious to claim that a law that was intended to strip a former president of control over government documents somehow protects said former president from prosecution for illicitly possessing them.

[Riva]

That comment on the PRA was merely an aside, but since you have such an interest in the PRA, you should understand that, consistent that law and presidential prerogatives respected since the founding of the republic, President Trump’s possession of documents was not “illicit.” And there are no criminal enforcement provisions in the act.

[David Nieporent]

you should understand that, consistent that law and presidential prerogatives respected since the founding of the republic, President Trump’s possession of documents was not “illicit.”

You make the same mistake Clarence Thomas made in Rahimi, thinking that "We haven't done this before" means that there's a constitutional rule against doing it. That is not valid logic. And since there is no constitutional rule, you should understand that it's up to Congress to decide what the law is. And you should therefore understand that the entire point of the PRA was to change the law regarding that historical practice.

And there are no criminal enforcement provisions in the act.

I mean, that's true, but since nobody is trying to prosecute him for violating it, I don't see how it's relevant to anything. The point is that he can't use it as a shield because it doesn't even purport to allow him to do what he did.

[DJK]

Running for office also can't be the primary reason for bringing criminal charges.

[Kazinski]

I was open to the fact Trump could be guilty of some crimes related to Jan. 6th, but waiting until August of 2023 to indict him made me realize it was all political, and that’s the lenses I have been viewing it ever since.

Josh, says January of 2021 would have been appropriate, but that’s hyperbole, August of 2021 would have given them plenty of time to build their case, and also plenty of time to have a trial and allow Trump to defend himself and present his appeals before the 2024 election.

But no. They wanted to wait to see if he’d run, then indict him and hopefully wound him enough the 2024 election would be a walkover.

They blew it.

As to authoritarianism, how about using the DOJ for political ends?

That's authoritarianism. And that's what happened in this case unless you have a.reasonable explanation of why it took until August 2023 to indict Trump, when you claim he was plainly guilty from the outset.

[Mr. Bumble]

Bigly!

[tylertusta]

A simple test to determine if someone suffers from TDS: Ask them if it’s ok for any of the remaining trial involving Trump to start exactly on November 6, 2024.

The level of freakout determines the severity of TDS.

[JasonT20]

A simple test to determine if someone suffers from TDS: Ask them if it’s ok for any of the remaining trial involving Trump to start exactly on November 6, 2024.

See my reply to Krayt above. You'll get from that what I think about this question. Is that TDS?

[tylertusta]

Good answer. You don't have an acute case of TDS.

[jb]

"I was open to the fact Trump could be guilty of some crimes related to Jan. 6th, but waiting until August of 2023 to indict him made me realize it was all political, and that’s the lenses I have been viewing it ever since."

This is one of those scenarios in which folks like you would say that the DOJ was messing with the timeline no matter what. If they went quickly you’d say they were rushing it because it’s Trump; if they go slowly, you say they’re slow walking it to interfere with the election. But as it turns out, 2.5 years is a pretty routine amount of time that it takes the federal government to put together a case to prosecute high profile people. Take a look at the prosecutions of John Edwards, Robert Melendez, Henry Cuellar or Larry Householder. All of these took 2+ years to put together. I’m curious what you think the “correct” amount of time for the indictment would have been, and what precedent you think there is for a similar case being put together that quickly.

Edited to add: not sure how my reply ended up here; was intending to respond to Kazinski.

[JasonT20]

Same thing on my end. I thought for sure I had hit the "reply" in Kazinski's comment.

[JasonT20]

I was open to the fact Trump could be guilty of some crimes related to Jan. 6th, but waiting until August of 2023 to indict him made me realize it was all political, and that’s the lenses I have been viewing it ever since.

Why does the pace of the investigation indicate that it was political? It isn't as if it was any secret that Trump was planning to run again at least a year before that. By summer 2021, it was clear that the vast majority of Republican politicians were going to line up behind Trump again, whatever responsibility they had said Trump had for Jan. 6 in the days afterwards. Kevin McCarthy had sabotaged efforts to form a truly bipartisan Jan. 6 committee by putting forth two Trump loyalists, with one of them, Jim Jordan, being someone there were lots of questions for about his involvement with planned protests.

You should have taken a moment to consider that there could be valid reasons why it took that long to seek an indictment:

1) So many people surrounding Trump refused to cooperate with any investigation, especially the Jan.6 committee.
2) Any potential crimes by Trump were likely to be in the form of incitement and/or conspiracy and obstruction. The incitement would take a lot of evidence for his state of mind (see #1) and conspiracy always takes a lot of legwork to build a case (and again, see #1). The DoJ may have also not wanted to be working heavily at the same time as the committee that did form, as they could get in each other's way. They may have wanted to let the House committee finish at least the major parts of its efforts to get testimony before moving forward at full speed.

Put simply, I think it most likely that you were already inclined to believe that the case was going to be political before anything actually happened.

[Kazinski]

All these cases needed to go to trial in 2024?

Trump real estate lawsuit for loans 2011-2021.
Trump Hush money case, events 2016-2017, made public 2018.
Trump Jan 6 case, for events Dec-2020 through Jan 2021.
Georgia Rico case for events Dec-2020 through Feb 2021.
And the Florida Classified Documents case 2021-2022.

[DJK]

That's all just a coincidence. ;-P

[Kazinski]

"Twice is Coincidence, three times is enemy action."

Fleming never got past 3, but five times has got to be jumping the shark.

[Commenter_XY]

Kaz, you don't understand, those cases were (D)ifferent. Just ask them.

[David Nieporent]

All of those cases began before 2024; the first one began in 2022. Did you think the courts should just skip the entire calendar year of 2024 because it was inconvenient to the defendant to be prosecuted in that year?

What makes your claim particularly audacious is that Trump did everything he could to stall these cases.

[Kazinski]

They skipped the entire year of 2021, there is no reason they couldn't have indicted him in the DC in 2022.

Braggs case, if it were legit, probably should have been filed in 2020 at the latest.

[not guilty]

When the federal government indicts a criminal defendant, the prosecution needs to be prepared to begin trial within 70 days of arraignment. For that reason, the investigation and substantial preparation needs to occur prior to asking the grand jury to indict.

The District Court here scheduled the trial to begin about seven months after arraignment. Team Trump would have squealed like stuck pigs no matter when the charges were brought.

[jb]

Seems like only two of those cases are going to trial in 2024.

And this proves how silly your underlying argument is: if there was a big conspiracy to "get" Trump in the election year they definitely wouldn't have waited as long as they did to indict him in these criminal cases. A lot of observers made the point that the more complex cases like the one in Georgia were very unlikely to go to trial given all the moving pieces, and Trump is known for using delay tactics in legal proceedings.

As I pointed out above, these cases were brought on totally ordinary timelines given past examples. For three of the four of them (the federal cases and the documents case) the bad conduct all started at roughly the same time so it's no surprise that they also ended up getting charged at roughly the same time.

I'm more skeptical of the New York cases generally and think it's a shame those are the only ones that went to trial, although became a lot more convinced about the criminal case during the course of the proceedings (or at least convinced that the defense did a terrible enough job that it's not that surprising Trump was convicted).

[Sarcastr0]

As has been noted, this is Kaz & co. being overdetermined. Every timeline of investigation/indictment/trial that includes 2024 is seen as proof positive of Democratic bad faith. Even if the pace is largely set by Trump delay tactics.

[Riva]

Not just the pace of any investigation, the trial pushed for by Smith evinced a manic effort to get a trial and conviction to cause maximum political damage to President Trump’s campaign. Efforts disgracefully aided by the DC courts.

[David Nieporent]

There was, of course, no manic effort. (But I do like the Schroedinger's timing; Smith was both too fast and too slow.)

[Riva]

The history of that case and Smith’s attempt to rush trial with the connivance of Chutkan and the DC circuit court expose your crap BS gaslighting as just more crap BS gaslighting. You need to give it some time to be more convincing in your lies. As it is, your version of events is as blatantly stupid a lie as Charlottesville, the laptop letter, and the Russian collusion hoax.

[David Nieporent]

There was no attempt to rush trial. This was a normal timeline.
For example, Bob Menendez was indicted in September 2023; his trial started in May and he was just convicted. Donald Trump was indicted in DC in August 2023. No reason his trial couldn't have taken place by now, if it wasn't for his successful stalling tactics.

[Kazinski]

So he just had his trial, and the raid on his home was June 2022, a year and a half after after Trump's actions Jan 6th.

What was going on during that 18 months, other than letting the Jan 6th committee prepare the battlespace?

[David Nieporent]

Minus the weird phrasing, that is indeed what they were doing, yes: letting the J6 committee finish its work.

[jb]

As David points out, it's pretty hilarious to simultaneously have Kazinski arguing that they slow-walked the case and you to be arguing that they're trying to rush it. As I pointed out, the pro-Trump crowd is obviously going to criticize the pace of proseuction no matter how fast or slow so it's hard to take any of the arguments very seriously. (Especially hard to take seriously when literally every party involved in the case is somehow involved in some big conspiracy.)

[DJK]

I'm of the same mind as you. I'm also flabbergasted that Smith didn't anticipate the constitutional challenges that the Trump team would make. This was sheer incompetence by the Department of Justice.

[David Nieporent]

I think he failed to anticipate that courts would make up new constitutional provisions to protect Trump. If the courts had treated Trump's constitutional challenges with the seriousness they deserved, it wouldn't have been an issue.

[Riva]

For someone who doesn't understand what separation of powers means, you sure are opinionated on what is and isn't constitutional.

[John F. Carr]

In most situations arguments presented only by an amicus need not be considered by the court.

[Kazinski]

But can be. They don't even have to accept the briefs, but they can, and did in this case.

And now its an issue addressed in the decision.

[ReadMore]

This is good old-fashioned street lawyering, which we used to think was wholly inappropriate in federal court. But having experienced federal judges unreasonably sit on motion rulings because they politically disagreed with my clients, or watched overwhelmed or senile judges screw up their own docket handling, these sort of tactics are no longer beyond the pale.

[tylertusta]

I mean, if it was OK for courts to do it for rulings that favors a liberal view of the law over the past 50 years, why is it not OK for a ruling that favors conservatives’ views in the 21st century?

Goose and gander and all that.

[JasonT20]

Goose and gander and all that.

I prefer The Golden Rule. The "good for the goose is good for the gander" point of view you are expressing too easily becomes, "give them what they gave us 2-fold or more." The "what they gave us" part doesn't even need to be true for people to want to hit the other side before they will think like that. Eventually, it will even become "Do unto others before they do unto you."

[tylertusta]

Unfortunately for us all, that ship sailed a while ago.

But hey, I’d be willing to reconsider. We can start by having a deescalation in good faith, like dropping all of the Trump cases and their related cases.

If that happens, then us on the right know that the other side is serious about a detente and maybe even have talks about reform.

[Estragon]

As I’ve pointed out here before… a certain feature of a particular— ahem— ideology is the concept of “prior innocence”

[kerfuffle]

Is there any circuit or Supreme Court authority holding that a party must ask a lower court to overrule a binding precedent that the lower court has no authority to overrule to preserve that issue on appeal?

[Noscitur a sociis]

Exactly the question that I came here to ask!

For extra credit, is there any authority that someone who's not a party to the case saying, "Maybe I can. I will." is enough to preserve it?

[JoeFromtheBronx]

Judge Cannon repeatedly found a way to delay and delay some more, ruling in ways to help Trump in the process. Once she was so bad that the 11th Cir. strongly rejected her position.

Who thinks this was somehow a "big mistake" for Attorney General Garland? She just would have found something else. It is not as if this was some big risk. The law is clear.

If anything, it might be helpful she decided instead of just Waiting for Godot-ing the case forever.

[Kazinski]

“The law is clear”.

Except the part that allows the AG to directly appoint an inferior officer.

And the part that allows a Special Counsel to draw unlimited funds from the Treasury without an appropriation.

[JoeFromtheBronx]

No. The law is clear. The fact there is a minority viewpoint on these pages and 1 of 9 (tentatively) on SCOTUS doesn’t change that.

[Rev. Arthur L. Kirkland]

Have any judges other than Clarence Thomas and Aileen Cannon — two disaffected clingers whose devotion to Donald Trump is evident — decided cases in a manner consistent with Cannon’s decision and Thomas’ one-man dissent?

[DJK]

Cite the (statutory or case) law that makes it clear.

[Sarcastr0]

"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."

Seems like that's the part that lets the AG appoint inferior officers.

As for your unlimited funding bit...just because Cannon says it doesn't mean it's Constitutionally problematic.
There's a pot of money Congress appropriates for independent prosecutors.

Maybe wait for the 11th Circuit on this one.

[Kazinski]

"Congress may by law..."

What's the law where Congress did that?

That is the part that's under dispute.

As for the appropriation question, Congress did appropriate a bucket of money for "Independent Counsel" investigations. The independent counsel law lapsed, Smith is a "Special Counsel".

Smith somewhat conceded the appropriation question.

[not guilty]

“What’s the law where Congress did that?”

Try 28 U.S.C. § 515(a):

(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.

Also 28 U.S.C. § 533 plainly states:

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.
(4) 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.

See also United States v. Nixon, 418 U.S. 683, 694 (1974):

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.

[Footnote omitted.]

[TW]

That's the issue that I see here - Congress passed a statute after Watergate in order to allow the Attorney General (head of a department) to appoint an independent/special counsel (inferior officer). After the Clinton impeachment, Congress decided to let that statute expire and it's no longer on the books. IMO once it expired, the attorney general no longer had that authority and if they wanted to continue doing it, they needed to have Congress pass a new law. I'm fine with the courts telling them "no, once the statute expired, you no longer had that power."

[Dan Schiavetta]

Yes, put into question whether the President can use the full force of the the federal government — FBI, IRS, DOJ — against his political enemies, or maybe those who did not praise him effusively enough — without any of the underlings who did the dirty work in fear of prosecution.

[jb]

Here's what I'm curious about:

Assuming Judge Cannon is correct in her ruling, isn't the implication that there's no such thing as a Special Counsel and therefore the only way to prosecute a claim against a political opponent via the "normal channels". If so, then shouldn't Markenzy Lapointe just re-file the charges? (i.e., why should the DOJ bother appealing this ruling when there's a direct alternative implied by the ruling itself)

[Kazinski]

Two reasons:

1. Smith's their man.
2. They also lose their unlimited access to unapprpriated funds.

And of course its an L, nobody limes taking a loss.

[David Nieporent]

why should the DOJ bother appealing this ruling when there’s a direct alternative implied by the ruling itself)

1) Because it sets a precedent that they don't like. (Not binding precedent, since it's just a district court ruling, but precedent nonetheless.)
2) Because if they reindict the case would go back before Cannon, whereas if they appeal they can get it reassigned to a competent judge.

[JoeFromtheBronx]

Prof. Michael Dorf as usual is on the ball:

"Garland seems to have walked into a trap. Seeking to avoid charges of partisanship by distancing himself and the President from the investigation and prosecution of the prior President, Garland appointed a Special Counsel. That appointment, Judge Cannon says, was itself unlawful. Thus, it seems, Garland avoided political blowback by courting legal blowback.

But that framing is naive. There was never going to be a way to hold Trump accountable for his crimes while his faithful appointees and other co-partisans occupy key judicial positions.

Garland and Smith did not stumble into a trap. They fell through a trapdoor. If it hadn’t been this one, it would have been some other."

https://www.dorfonlaw.org/2024/07/judge-cannons-trapdoor.html

[The Margrave of Azilia]

Poor Garland, hampered by his own decency and by the corruption and bias of all the courts who don't rule how he wants.

/sarc

[Michael Ejercito]

The Special Counsxel who prosecuted Hunter Biden is a United States Attorney, nominated by the President and confirmed by the Senate.

[JoeFromtheBronx]

No sarcasm was necessary.

Judge Aileen Cannon has shown herself to be a corrupt hack.

The Supreme Court has also been corrupt and biased.

Garland is overall decent.

Republicans back in the day -- until they didn't -- cited Garland as an ideal judicial nominee. Multiple conservatives, repeatedly citing originalism and the usual approaches they use, have called out Cannon & SCOTUS's pro-Trump hack jobs. The reply is b.s. and sarcasm. Not convincing.

[Michael Ejercito]

I do believe, as I have for years, that Morrisson was wrongly decided.

In an ultimate sense, with one possible exception, the President has the absolute authority to remove any Article II employee, from the Secretary of State to whoever was hired to replace the light bulbs in some remote federal office, for any reason whatsoever.

[Hugh]

When I went to law school a few years back, we were taught that lower courts had to follow high court precedent, and only the higher court could overrule it's own prior decision. Apparently that's no longer the case, all you have to do it you don't like say, Marbury vs. Madison, or McCullough v. Maryland, or Gibbons v. Ogden, is to find some unscrupulous hack federal district court judge to overturn it. Congratulations, Professor Blackman, but you will rue your good fortune some day when some unscrupulous hack district court judge of the left-wing persuasion rules directly against D.C. v. Heller.