Judge Aileen Cannon's Opinion in U.S. v. Trump

My thoughts on this opinion.

After an incredibly busy week, I finally had time today to read carefully Judge Aileen Cannon's opinion in United States v. Trump. I thought it was excellent, indeed better than most Supreme Court opinions on the Appointments Clauses (although entirely consistent with those opinions). I might be biased given that Judge Cannon's opinion cited Gary Lawson's and my law review article on this topic, but she went way beyond that article. President Trump of course was also biased in calling her wise and brave, but in this instance I think he was correct.

Here is the heart of the question that Judge Cannon was considering: Has Congress delegated to the Attorney General either the power to create inferior officers or the power to create the office of Special Counsel, which Jack Smith fills? In her very detailed and textualist opinion, Judge Cannon persuasively shows that the answer is "no."

Judge Cannon's opinion shows that each Section of the U.S. Code, which Smith relied on, neither delegates to the Attorney General the power two create inferior offices, nor does it create the office of the Special Counsel. Her argument is irrefutable. I have yet to read a response to her opinion that is remotely as persuasive as the opinion itself.

Judge Cannon also discusses, but does not decide whether an office like the office of Special Counsel, if it existed, would be a Principle or Inferior Office for Appointments Clause purposes. Her discussion of that issue is good as any judicial opinion since one written by Justice David Souter concurring in Edmond v. United States, 520 U.S. 651 (1997).

In addition, Judge Cannon discusses what I think is a very serious Appropriations Power issue in the case. She quite rightly concludes that the Justice Department should lose on both grounds, but she correctly relies only on the Inferior Office Appointments Clause and the statutory arguments before her as deciding the case.

Gary Lawson and I argued in Why Robert Mueller's Appointment as Special Counsel Was Unlawful, 95 Notre Dame Law Review 87 (2019), that the "Department of Justice should write a new regulation, replacing the 1999 Janet Reno Regulations, specifying that, in the future special counsels shall be appointed from among the ranks of the permanently appointed U.S. Attorneys."

This would give an Attorney General a list of up to 93 names from which she or he could appoint a Special Counsel. All of the people on that list are Senate-confirmed officers of the United States who could be given the additional power of prosecuting a case outside of their own districts.

Democrats who are concerned by Judge Cannon's opinion should ask themselves how they would feel, if an Attorney General appointed by a second term President Trump, had the power to create an unlimited number of Special Counsels all of whom were inferior officers as powerful as is Jack Smith?

Sadly, instead of doing that, Attorney General Merrick Garland, a former D.C. Circuit Judge, has chosen to appeal Judge Cannon's ruling to the Eleventh Circuit.

He has done this with no acknowledgment of the dangers that the Janet Reno regulations pose to the separation of powers or to the system of checks and balances, which the Constitution creates.

Comments

[JoeFromtheBronx]

Democrats who are concerned by Judge Cannon's opinion should ask themselves how they would feel, if an Attorney General appointed by a second term President Trump, had the power to create an unlimited number of Special Counsels all of whom were inferior officers as powerful as is Jack Smith?

Not what I'm worried about regarding another Trump presidency.

[JesusHadBlondeHairBlueEyes]

You must be worried about the increase in human flourishing and quality of life. Which is rat poison to the State.

[Michael P]

Yes, we know your biggest concern is that people will see what happens when government recognizes citizens' liberty and the (enumerated and unenumerated) limits on government powers -- and like it.

[LoganMankins]

Calabresi concern trolling about how Dems would feel if Trump did stuff like this is really funny because we’d see an amicus from never trumper-turned Haley supporter-turned balls deep Trump supporter Calabresi saying what Trump is doing is actually in line with the constitution.

The rot runs deep.

[not guilty]

Aileen Cannon does for jurisprudence what Christian Szell did for dentistry.

The Eleventh Circuit has bench slapped her twice so far in regard to her coddling Donald Trump. I doubt that the instant decision will fare any better.

[JesusHadBlondeHairBlueEyes]

Tell everyone again how FBI staff attorneys are equivalent to Special Counsels and USDAs.

Make sure you cite the statutes but leave off the FBI part. Lol that shits so funny

[Kleppe]

Still waiting for a refutation of what the judge wrote. Any refutation at all.

[not guilty]

Uh, I have done that on other threads. Judge Cannon wrote an entirely result oriented opinion to benefit Donald Trump, just as she did when the case was at the investigative stage. See Trump v. United States, 54 F.4th 689, 701 (11th Cir. 2022) (“To create a special exception [for Trump] would defy our Nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth, or rank.’ State of Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4, 1 L.Ed. 483 (1794)).

The authority of the Attorney General to appoint a Special Counsel should have been foreclosed by United States v. Nixon, 418 U.S. 683, 694 (1974), where the Supreme Court stated: “[Congress] has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533.” In acting pursuant to those statutes, the Court held, the Attorney General validly delegated authority to a special prosecutor to investigate offenses arising out of the 1972 presidential election and allegations involving President Richard M. Nixon. Id.

Judge Cannon wrongly declared this language to be dicta. It is not. As the D.C. Circuit has opined:

Miller contends, unpersuasively, that the quoted sentence in Nixon, 418 U.S. at 694, 94 S.Ct. 3090, is dictum because the issue whether the Attorney General had statutory authority to appoint a special prosecutor was not directly presented and the Supreme Court did not analyze the text of the specific statutes. It is true that a statement not necessary to a court’s holding is dictum. See City of Okla. City v. Tuttle, 471 U.S. 808, 842, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003); Martello v. Hawley, 300 F.2d 721, 722–23 (D.C. Cir. 1962). But Miller misreads Nixon, for the Supreme Court was presented with the question whether the Supreme Court was presented with the question whether a justiciable controversy existed. When the Special Prosecutor issued a subpoena to the President to produce certain recordings and documents, the President moved to quash the subpoena, asserting a claim of executive privilege, id. at 688, 94 S.Ct. 3090, and maintained the claim was nonjusticiable because it was “intra-executive” in character, id. at 689, 94 S.Ct. 3090. The Supreme Court held there was a justiciable controversy because the regulations issued by the Attorney General gave the Special Prosecutor authority to contest the President’s invocation of executive privilege during the investigation. Id. at 695–97, 94 S.Ct. 3090. In this analysis, the Attorney General’s statutory authority to issue the regulations was a necessary antecedent to determining whether the regulations were valid, and, therefore, was necessary to the decision that a justiciable controversy existed. The Supreme Court’s quoted statement regarding the Attorney General’s power to appoint subordinate officers is, therefore, not dictum.

In re Grand Jury Investigation. 916 F.3d 1047, 1053 (D.C. Cir. 2019). The context of the subject passage from Nixon is that SCOTUS expressly rejected Nixon’s contention that the dispute does not present a “case” or “controversy” which can be adjudicated in the federal courts. 418 U.S., at 692.

Federal courts exercise only the jurisdiction that Congress has given to them. Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies.” Every federal court has the obligation to examine (sua sponte if not raised by the parties) whether the dispute before it falls within that limitation of Article III. Whether the matter is justiciable is part of that analysis. See Rucho v. Common Cause, 139 S. Ct. 2484, 2493-94 (2019). “An appellate federal court must satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review.” Mitchell v. Maurer, 293 U.S. 237, 244 (1934) (standing) [footnote omitted]. Accordingly nothing that the Supreme Court says about federal subject matter jurisdiction, standing or justiciability — each of which is a component of whether Article III is satisfied in the case before it — is dictum not necessary to a court’s holding. No justiciability, no federal lawsuit.

In the intervening 50 years since Nixon, Congress could by statute have abrogated the Supreme Court’s application of 28 U.S.C. §§ 509, 510, 515, and 533. That Congress has not done so is evidence of Congressional acquiescence in that statutory application.

[Bruce Hayden]

“ The authority of the Attorney General to appoint a Special Counsel should have been foreclosed by United States v. Nixon, 418 U.S. 683, 694 (1974), where the Supreme Court stated: “[Congress] has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533.” In acting pursuant to those statutes, the Court held, the Attorney General validly delegated authority to a special prosecutor to investigate offenses arising out of the 1972 presidential election and allegations involving President Richard M. Nixon. Id”

I don’t think that you quite understand this. There are these 117/118 Officers in the DOJ itself:
- AG (§ 503)
- DAG (§ 504)
- SG (§ 505)
- Associate AG (§ 504a)
- 11 Assistant AGs (§ 505)
- 92/93 USAs (93 Districts, but Guam typically shares, I think typically with Hawaii) (§ 541)

All except the Assistant AG for Administration are nominated by the President and require Senate confirmation. These are the statutory Officers in the DOJ proper. There are no more.

Why you think that a DC Circuit opinion would be binding on the ED FL is beyond me. They are bound by 11th Circuit and Supreme Court decisions as precedent.

[not guilty]

The point of my citing the D.C. Circuit case is to demonstrate that, contrary to Judge Cannon's characterization of the language from Nixon as dictum, it is in fact essential to the Nixon ruling by SCOTUS. I make no claim that the D.C. Circuit precedent binds Judge Cannon. The reasoning thereof, however, shows that Cannon treatment of the subject language from Nixon is wrong.

[Vryedni]

That Cannon wasn’t bound by D.C. Circuit precedent may at least save her from being throw off the case when the Eleventh Circuit overrules her.

[not guilty]

"That Cannon wasn’t bound by D.C. Circuit precedent may at least save her from being throw [sic] off the case when the Eleventh Circuit overrules her."

I don't know about that. "What's past is prologue." W. Shakespeare, The Tempest, Act 2, Scene 1. 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).

The Eleventh Circuit considers at least three elements in determining whether to reassign a case to a different judge based on the original judge's actions at trial where there is no indication of actual bias: (1) whether the original judge would have difficulty putting his previous views and findings aside; (2) whether reassignment is appropriate to preserve the appearance of justice; (3) whether reassignment would entail waste and duplication out of proportion to gains realized from reassignment. Torkington, 874 F.2d at 1447. Each criterion here favors bouncing Judge Cannon upon remand.

[Vryedni]

Well, I did say "may." On the other hand, I can't say I much care one way or the other. I'd still kind of like to see a hack like Cannon removed if only to embarrass her. But for the most part it's all rearranging decks chairs on the Titanic. The federal cases are dead as door nails as soon as Trump takes the oath of office. Reason #2859 the voters who are going to elect him are disgraces to the rule of law.

[Bruce Hayden]

Yes, maybe. Except that ruling against Smith is very different than being prejudiced against him. She appears to have been less biased against Smith, than the other three judges have been biased against Trump. Should the DC judge be replaced for having been slapped down by the Supreme Court on the immunity issue?

In any case, the criteria here is not that she ruled against Smith, but that she was wrong to have done so, and did so in order to prejudice Smith. But, instead, she ostensibly did so at the suggestion of the senior Justice of the Supreme Court (Thomas) with the probable agreement of at least one other Justice (Alito). Can she pick up at least two more votes for Cert? Probably.

[kramartini]

Cannon is more likely to be elevated to a higher court than thrown off of this case...

[Kazinski]

I don't think there is much chance she is thrown off this case, because there no longer is one she dismissed it.

Now there is a chance the 11th will say that she has been thrown off, but then its not going down to a lower court it's going up to SCOTUS.

The 11th has to be careful too, it would be pretty embarrassing to make a big splash reversing her and then pulling her off the case, and then get reversed herself.

They might just go small, and reverse the remedy, and uphold the decision.

[Riva]

Vryedni, I suppose it’s possible that the Eleventh Circuit could issue a grossly irresponsible politically motivated opinion that reverses Judge Cannon. They have the DC Circuit as a role model there. But if you think that anything of import will happen before November, I think you’re placing too much faith in this repulsive lawfare to win the election. But I guess it’s all you have.

[Vryedni]

But if you think that anything of import will happen before November, I think you’re placing too much faith in this repulsive lawfare to win the election. But I guess it’s all you have.

I think anything of import will happen? All I have? Did you not see that I said this case is dead as a door nail, or did you not understand it because you're incapable of processing even trivial agreement with someone who doesn't share your partisan derangement?

[Riva]

And Congress would not hide as significant a power as the authority to appoint a “special counsel” with more power than a US Attorney amid a mundane statutory scheme outlining the AGs management of DOJ attorneys and personnel given the clear and plain language normally used to grant such authority. Congress doesn’t hide elephants in mouseholes.

[David Nieporent]

In what way does he have "more power than a US Attorney"? Can he shoot laser beams out of his eyes?

[Mr. Bumble]

No laser beams, just bullshit legal theory out of his ass.

[Sarcastr0]

Nah, every commenter on here can do that.

[Riva]

Well for one he can pick and choose his states, or even DC if he wants. Like he did here using a DC grand jury to investigate, with appropriate rubber stamps along the way by DC judges, then having everything read over the phone to Florida Grand Jury, where the case should have been in the first place. Because you’re so mind bogglingly ignorant, you make it easy to respond to your BS.

[kramartini]

Your point is a good one. Since Trump notoriously did not attend Biden's inauguration, he was in Palm Beach (and not DC) the moment that he ceased to be President. Which means that any crimes that may or may not have occurred with respect to the documents were in the Southern District of Florida, and that DC was not the proper venue for a grand jury. I wonder what effect, if any, the improper venue has on the subpoenas that issued from the improperly convened DC grand jury.

[not guilty]

"I wonder what effect, if any, the improper venue has on the subpoenas that issued from the improperly convened DC grand jury."

What do you surmise was improper about convening a grand jury in the District of Columbia? Fed.R.Crim.P. 6(a)(1) requires grand juries in every federal district.

Venue governs the place of trial, not the location of investigation by a grand jury.

Per 18 U.S.C. § 3237(a), any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

Most of Donald Trump's misconduct regarding the documents taken to Mar-a-Lago occurred in Florida. Some acts or omissions, however, occurred in D.C., where production of all documents with classification markings pursuant to the grand jury's subpoena should have, but did not, occur. Grand jury subpoenas may be served at any place within the United States. Under Rule 17(g) of the Federal Rules of Criminal Procedure, a failure by a person without adequate excuse to obey a subpoena served upon him or her may be deemed a contempt of the court. Some documents were wrongfully retained in New Jersey.

The prosecution had multiple venues that it could have sought to indict Trump.

[Riva]

That Smith could exercise his “office” in both the DC and Florida districts kind of shows how his powers exceeded those of a US Attorney, which was the question asked, if the obnoxious sarcasm of your little buddy Dave can be construed as asking something. But, fun fact, apparently the thug Smith was so special he was continuing, post-indictment, to use the DC grand jury. Double the thug fun I guess. Lawfare is special and needs a really special counsel. So special they had to go outside the constitution to find him.

[kramartini]

You have a point about "improperly convened". I should have said that Jack Smith improperly presented the case to the DC grand jury, and thus any subpoenas issued are likewise improper.

What evidence is there that any part of the alleged crimes related to the documents occurred in DC? Consider that any acts by Trump related to the documents that occurred before noon on January 20, 2021 are "official acts".

[Riva]

not guilty, I know you wish the Nixon court had decided the question of statutory authority but the legal reality is that they didn’t and the unpersuasive dictum in that case should NEVER foreclose consideration of the matter in a case that directly addresses the issue. The issue of the Attorney General’s appointment authority was not raised, briefed, argued, or disputed before the Nixon Court. And that question was NOT essential to Nixon’s justiciability analysis. Those brief comments are at most antecedent assumptions not entitled to precedential weight. “In re Grand Jury Investigation relied on “presuppositions” and “antecedents” to determine that Nixon—which itself did not engage with the applicable statutory text—was dispositive and foreclosed any
statutory challenge. But as explained above, the Supreme Court has cautioned that “presuppositions” and “antecedents” of this sort “are not binding in future cases that directly raise
the questions.”

[not guilty]

Uh, a federal court's determining whether a case is justiciable is an essential part of determining whether the lawsuit presents a case or controversy for purposes of Article III. Nothing the Supreme Court says about justiciability can be unnecessary to the holding of the case. No justiciability, no lawsuit.

[Riva]

Sure, but the point is that in Nixon, the AGs statutory authority was NOT essential to that justiciability analysis:
“To be sure, that President Nixon delegated to the Special Prosecutor (via the regulation) the power to “determin[e] whether or not to contest the assertion of ‘Executive Privilege’ or any other testimonial privilege,” 38 Fed. Reg. 30,739, amended by 38 Fed. Reg. 32,805, was integral to Nixon’s justiciability holding. 418 U.S. at 694–97. This delegation assured the Supreme Court that “concrete adverseness” existed between the parties. Id. at 697 (quoting Baker v. Carr, 369 U.S. at 204); see id. at 696 (explaining that “[s]o long as this regulation remains in force the Executive Branch is bound by it”). In other words, two features were essential to the justiciability holding: (1) the nature of the parties’ relationship as defined in the very broad delegation of authority in the regulation; and (2) the fact that the regulation had not been revoked. But Nixon’s passing reference to statutory authority was not essential to the analysis, and nothing in the remainder of the decision suggests that the Supreme Court was reasoning from its earlier passing remark.”

[not guilty]

Another glaring flaw in Judge Cannon’s opinion is that, assuming arguendo that the appointment of the Special Counsel is defective, it doesn’t follow that dismissal of the indictment is an available remedy.

Jack Smith didn’t indict Donald Trump. The grand jury for the Southern District of Florida indicted Donald Trump. “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. The Fifth Amendment requires nothing more.” Costello v. United States, 350 U.S. 359, 363 (1956) (footnote omitted).

[Kazinski]

Smith didn't propose a remedy if he was struck as special counsel, the defense did, so she went with the Defenses remedy. Smith had his chance to propose that, but it was all or nothing at all for him.

And don't forget she also ruled his expenditures were not legally appropriated, but didn't impose a remedy because she already dismissed the case on the improper appropriations. But she quoted an Edith Jones decision dismissing a CFPB lawsuit funded by improper appropriations.

[not guilty]

"Smith didn’t propose a remedy if he was struck as special counsel, the defense did, so she went with the Defenses remedy. Smith had his chance to propose that, but it was all or nothing at all for him."

Kazinski, it doesn't matter what the parties' respective positions are if the court fashions a remedy which it has no power to impose. The finding of a facially valid indictment by a legally constituted grand jury requires a trial.

[rswallen]

Assuming that Smith wasn't constitutionally authorized to prosecute the case, wouldn't it also follow that the Grand Jury wasn't legally constituted, as he would have had no power to convene it?

[not guilty]

Uh, no. Prosecutors do not convene federal grand juries. District Courts convene them.

[rswallen]

Apologies, I'm not entirely familiar with the correct terms. The point I'm trying to make is that, at some point, there will have been a request to the court for a grand jury to hear the case, and that that request requires a certain amount of authority (ie a random person plucked off the street could not walk in and request that a grand jury hear a case). If Smith had no authority to prosecute the case, he also would not have had the authority to make such a request, and thus the grand jury, though it appeared at the time to be legally constituted, was in fact not.

[Riva]

In sum, putting aside not guilty's irrelevant aside that has no more value than the Nixon dictum, Smith was acting pursuant to an illegal unconstitutional appointment and the invalidation of all his actions under that illegal authority, including seeking the indictment, were properly invalidated.

[not guilty]

No, rswallen, federal district courts convene grand juries on a regular basis. Fed.R.Crim.P. 6(a)(1). No request from a prosecutor is necessary. The grand jury can subpoena witnesses to appear before it to testify and/or to produce documents, either at the request of the prosecutor or acting on its own initiative.

A citizen wishing to report criminal activity would ordinarily contact law enforcement. If there is potentially a federal crime involved, the report will likely be routed to the FBI for investigation. Any citizen can make a request to appear before a grand jury.

[Riva]

The question isn't what district courts do. It's what the illegally appointed Jack Smith did. And those ultra vires actions were properly invalidated. You have a habit of focusing on irrelevant details, like dicta.

[David Nieporent]

Apologies, I’m not entirely familiar with the correct terms.

It's not terminology that's the problem; you're not familiar with the nature of a grand jury. If a random person off the street did walk into a grand jury room and make a request of the grand jury, that random person may be engaged in trespassing, but it would not affect the authority of the grand jury to act. It is the grand jury, not the prosecutor, who makes the decisions about whom to indict and for what; no "request" from a prosecutor is required or binding.

[Riva]

No, the error to be addressed is the unconstitutional appointment of Smith. The proper remedy for his unlawful exercise of executive power is to invalidate his ultra vires actions. You and the other yum yum here are essentially attempting to salvage Smith's work by some twisted version of the de facto officer doctrine, properly rejected by Judge Cannon as inapplicable to a timely raised challenge to an officer's appointment.

[David Nieporent]

The proper remedy for his unlawful exercise of executive power is to invalidate his ultra vires actions.

Even if that's true, it completely misses the point, which the Riva bot hasn't been programmed to address and so can't: the indictment isn't Smith's action in the first place, so it can't be an ultra vires action. Cannon didn't invalidate Smith's action; she invalidated the grand jury's.

[Riva]

Yeah, I admit Dave, that I have no inclination to respond to any more of your stupidity so we’ll just let it sit there and decay.

[Kazinski]

What's the remedy for a prosecutor tapping into an unlimited kitty of money they shouldn't have access to?

Spending $12m in unappropriated funds that should have been appropriated by Congress, or taken from elsewhere in DOJ appropriated funds.

Dismissal also seems apt, and she did cite a case form the 5th on point (that did get reversed on other grounds).

[JesusHadBlondeHairBlueEyes]

Good point, where did that money come from? Since when can the Executive poof it's own money into existence?

[Riva]

No, dismissal of the indictment was absolutely the proper remedy in light of Smith's unconstitutional appointment. Smith was unlawfully exercising executive power and invalidation of the his ultra vires acts was entirely appropriate. One of those actions was seeking the indictment.

[not guilty]

As I said, Jack Smith did not indict Donald Trump; the grand jury indicted Trump. It simply doesn't matter who sought the indictment. While presentments have fallen into disuse in federal court, the grand jury retains authority under the Fifth Amendment to act solely on its own volition, with no input from any prosecuting attorney. See Hale v. Henkel, 201 U.S. 43, 61-66 (1906).

If Jack Smith had never been appointed, then Jay Bratt (whose involvement in the investigation of this case long preceded Smith's appointment) would doubtless have sought an indictment. There is no evidence that Smith's participation was necessary to the grand jury finding probable cause and returning an indictment and a superseding indictment in this case.

[Mr. Bumble]

"There is no evidence that Smith’s participation was necessary to the grand jury finding probable cause and returning an indictment and a superseding indictment in this case."
Then why was he appointed?

[JasonT20]

Then why was he appointed?

Special counsels are appointed to avoid the appearance of conflicts of interest. Surely you know that, and you know that prosecuting a former President and current candidate opposing the current President for that office carries a least an appearance of conflict of interest. Even in the case of Hunter Biden, with the prosecutor being a US Attorney, there is at least an appearance of a conflict of interest, but by naming Weiss as a special counsel, there is some degree of insulation from interference from above.

In my view, it is actually better for a special counsel to not be a current government employee. Whether that is always possible or constitutional is a different matter, but from an ethics point of view, I stick by that.

[Mr. Bumble]

"...but by naming Weiss as a special counsel, there is some degree of insulation from interference from above."
How do you figure that?
Hunter's attorney's don't think so since they are seeking dismissal based on Judge Cannon's ruling.

[Noscitur a sociis]

Even in the case of Hunter Biden, with the prosecutor being a US Attorney, there is at least an appearance of a conflict of interest, but by naming Weiss as a special counsel, there is some degree of insulation from interference from above.

I don’t really see how. The primary purpose of the Weiss appointment, I think, was to enable him to prosecute Biden’s crimes outside of the District of Maryland.

[Magister]

Weiss was appointed as a US Attorney by Donald Trump, and then retained by Joe Biden. Similarly with the appointment of Robert Hur, another Trump appointee but not currently a US Attorney, this somewhat reduces the appearance of a conflict of interest.

The rules for the special counsel still give significant independence, even if ultimate authority remains with the Attorney General. The relative rarity of special counsels will almost certainly mean substantially more public attention to the activities of the special counsel, making it harder for the Attorney General or President to influence the investigation without notice.

[Riva]

Smith was the party unlawfully exercising executive authority to seek the indictment. All actions by Smith were ultra vires. Dismissal was in fact the only appropriate remedy. And, I think its been noted but to reiterate, Smith did not propose any alternatives.

[not guilty]

Riva, do you have any authority for your contention that an irregularity regarding the appointment of a prosecutor requires dismissal of a grand jury indictment? Please be specific.

Fed.R.Crim.P. 52(a) provides that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” In the context of alleged prosecutorial misconduct before the grand jury, SCOTUS has expressly “h[e]ld that, as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988).

Per Bank of Nova Scotia, “The prejudicial inquiry must focus on whether any violations had an effect on the grand jury’s decision to indict. If violations did substantially influence this decision, or if there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot be deemed harmless.” 487 U.S. at 263. Here Donald Trump has come nowhere close to making such a showing of prejudice.

The investigation into Trump’s conduct regarding the documents at Mar-a-Lago, led by Jay Bratt, preceded Jack Smith’s November 2022 appointment by several months. If no Special Counsel had been appointed, Bratt would no doubt have secured the same indictment that Jack Smith did.

[kramartini]

Are you saying that statements made by Smith to the grand jury did not influence the grand jury?

[not guilty]

I am saying that there is nothing in the instant record indicating what Jack Smith did or did not say to the grand jury. Nor could there be. See Fed.R.Crim.P. 6(2)(B).

[kramartini]

There should be a presumption that the alleged prosecutor did his purported duty "to advise the grand jury on the law and to present evidence for its consideration." DOJ Justice Manual Section 9-11.010

I think it is pretty clear that Smith likely had a "substantial influence" on the decision to indict.

But Rule 7(c) is cleaner and simpler.

And in any event, the dismissal is without prejudice, so why is it the end of the world?

[not guilty]

“I think it is pretty clear that Smith likely had a ‘substantial influence’ on the decision to indict.”

No, that is not clear at all. The government was represented by a plethora of lawyers. Who presented what evidence or gave what advice to the grand jurors is unknown and, by operation of Fed.R.Crim.P. 6(e)(2)(B), unknowable. The Court of Appeals is not permitted to speculate about that.

In order to show prejudice, the defendants would need to show that the grand jury would not have indicted if Jay Bratt or any other government attorney not named Jack Smith had presented the case to them.

Fed.R.Crim.P. 7(c) does not prescribe a remedy for an indictment having been signed by a putative attorney for the government, who is later determined to have been appointed irregularly. It must accordingly be read in pari materia with Rule 52(a). And the burden of showing that an alleged error is prejudicial and not harmless is on the Defendants.

[Noscitur a sociis]

Who presented what evidence or gave what advice to the grand jurors is unknown and, by operation of Fed.R.Crim.P. 6(e)(2)(B), unknowable.

I mean, it’s clearly not unknowable: there should be a verbatim record of the grand jury proceedings. (If there isn’t, we’ve got bigger problems!) And to the extent that the contents of that record would justify dismissing the indictment, then Fed. R. Crim. P. 6(e)(3)(E)(ii) authorizes disclosure.

[not guilty]

“I mean, it’s clearly not unknowable: there should be a verbatim record of the grand jury proceedings. (If there isn’t, we’ve got bigger problems!) And to the extent that the contents of that record would justify dismissing the indictment, then Fed. R. Crim. P. 6(e)(3)(E)(ii) authorizes disclosure.”

Uh, no. That would require the Court of Appeals to consider matters not brought to the attention of the District Court. That is a big no-no. Rule 6(e)(3)(F) explicitly requires that a petition to disclose a grand-jury matter under Rule 6(e)(3)(E)(i) must be filed in the district where the grand jury convened.

In that the dismissal of the indictment was based on the District Court’s construction of constitutional and statutory provisions, the appellate court’s review is de novo on the record. If the Defendants did not seek relief from the grand jury secrecy provisions of Fed.R.Crim.P. 6(e) in the District Court, it is too late to do so now.

[Riva]

You're somewhat confused here, not guilty. The error isn't a defect or variance in grand jury proceedings. The error is the unconstitutional appointment of Jack Smith. All his actions, including seeking the indictment, were unlawful exercises of executive power. For that, the proper remedy is invalidation of the ultra vires action, for which judge cannon was guided by a number of S.Ct. precedent, including but not limited to Lucia v. SEC, 585 U.S. 237 (2018). Feel free to review the opinion. And I will also note that even that hack Smith did not try to invoke the remedies you advocate, likely precisely because the legal authorities are inapplicable.

[not guilty]

None of the authorities cited by Judge Cannon regarding ultra vires actions has a damn thing to do with whether a grand jury indictment is valid.

Jack Smith did not indict Donald Trump and his codefendants. The grand jury for the Southern District of Florida indicted them. The grand jury does not exercise executive power. The grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It "is a constitutional fixture in its own right." United States v. Williams, 504 U.S. 36, 47 (1992).

[Riva]

At least we’ve moved past your ridiculous assertion that this was merely an error or defect in grand jury proceedings. What the authorities cited do address are remedies for errors involving the unconstitutional appointment of an officer, for dismissal is the proper if not the only way to address the illegal use of executive power by Smith in seeking this indictment and bringing these proceedings. You basically want to salvage his illegal work, which is a grossly inappropriate response to the timely brought challenge to his constitutional authority. Enough with this crap already. Even Smith recognized the jig was up at this stage.

[Randal]

Ah, Riva, you finally admitted what we all already knew. Your thoughts about the remedy aren’t based on law but simply on your opinion of what’s “appropriate.”

That’s lovely. Now get back to us when you have a legal argument.

[not guilty]

Still waiting, Riva. Do you have any authority for your contention that an irregularity regarding the appointment of a prosecutor requires dismissal of a grand jury indictment?

Not so glib all of a sudden, are we?

[Riva]

You probably should have read my response to your, to be kind, invalid argument, before mouthing off. Just another error on your part.

[not guilty]

Once again, Riva. Do you have any authority for your contention that an irregularity regarding the appointment of a prosecutor requires dismissal of a grand jury indictment?

Because you damn sure haven't furnished any such authority yet.

[Riva]

My responses above address your fallacious reasoning. You're on the wrong side of this but your politics blind you to that. You need a time out.

[not guilty]

No, Riva. Citing legal authority refers to relevant judicial decisions, statutes, procedural rules, etc. Ipse dixit assertions don't feed the bulldog.

You have cited a grand total of one judicial decision, Lucia v. SEC, 585 U.S. 237 (2018), no statutes and no procedural rules. Lucia, which considered whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC or Commission) qualify as "Officers of the United States," was not a criminal case, and it obviously did not involve a grand jury indictment. Rule 52(a) of the Federal Rules of Criminal Procedure had no application there.

The ALJ whose appointment was challenged in Lucia was found to have been improperly appointed, and the Supreme Court ruled that another, properly appointed ALJ (or the Commission itself) must hold the new hearing to which Lucia is entitled. 138 S.Ct. at 2055. The challenged ALJ had served in an adjudicatory capacity and had imposed substantial penalties. That kind of harm could not have been undone short of a de novo hearing before another ALJ.

That is not the case with the Trump indictment. Jack Smith's role has not been adjudicatory, but instead has been that of an advocate. And it bears repeating once again that Jack Smith did not indict Donald Trump. The grand jury had just as much latitude to return a true bill or a no bill as would have been the case with any other prosecuting attorney. The indictment itself burdens Trump and his codefendants, not the identity of the prosecutor.

[Riva]

My comments speak for themselves. I directed you to Judge Cannon’s opinion, noting her reliance on Lucia and other precedent. Spare me your condescending BS. Dismissal was the proper if not only remedy for the illegal use of executive authority by Smith under the relevant Supreme Court precedents (to be clear you clod, the precedents relied on by Judge Cannon). You and the other bozo essentially want to salvage Smith’s work by some twisted variation of the de facto officer doctrine, which, as noted, was properly rejected by Judge Cannon as inappropriate given the constitutional error. Do yourself and favor and take your time out. You’re wrong here, move on.

[Riva]

But I should add one final comment to not guilty’s response above, just in case it helps anyone in the future. He apparently finds issue with citing one decision. How many cases do you need to cite? Just one will do. I’m sure not guilty in practice would pepper his briefs with string cites of multiple cases, many of which, given today’s comments, were likely irrelevant, and irritate the hell out of the judge. I urge anyone here just starting out not to follow his example.

[not guilty]

Riva, you wouldn't recognize actual legal analysis if it bit you on the backside. All you can do is parrot what Judge Cannon writes.

Do you have any authority for your contention that an irregularity regarding the appointment of a prosecutor requires dismissal of a grand jury indictment? Because you haven't provided any such authority. Neither did Judge Cannon. If you say that she did, you are just flat out lying. Nothing that she cited even remotely addresses dismissal of a grand jury indictment.

My suspicion is that Cannon got in way over her head with this case and delivered a punt that Ray Guy would envy. She should know that the Court of Appeals will quickly reverse the order of dismissal and, in all likelihood, order that she be bounced on remand.

[Mr. Bumble]

You two sound like a couple in a bitter divorce.
No matter what the 11th Circuit decides Trump will not be appearing before a jury in this case before he is elected president.

[Riva]

Again with the petty belittling, not guilty? Well you’ve convinced me you’re a democrat if nothing else.
This was not a matter of “mere irregularities” in the appointment of a prosecutor. Smith had no legal authority to do anything and the authority relied on by Judge Cannon absolutely supports invalidation of his ultra vires acts. Sure, the 11th Circuit could reverse. Plenty of clown show panels out there as the DC circuit has recently proven in its handling of immunity. But will anything consequential happen before the election? Not likely. This stage of repulsive lawfare is effectively over.
And I assumed we weren’t on opposite sides Mr. Bumble, but fuck you.

[Mr. Bumble]

Riva:
I think you misconstrued my comment. We are most assuredly not on opposite sides and I was only comparing your contrary positions to a couple in a bitter divorce.
My position has been and I've made it several times; no matter the 11th Circuits decision Trump will not be going to trial before the election in either the FL case and most likely not in the DC case.

[not guilty]

Riva, have you ever litigated a criminal case to jury verdict or an appeal to its conclusion?

Citing a single judicial decision which is on point can sometimes be useful. Citing only one decision which is off topic, while yapping and yammering ipse dixit drivel is just about as harmful as citing no authority at all.

When I make an assertion about what law does or does not apply to a given situation, I am careful to support my contention with applicable authority. I do this out of respect for the readership here, who can check the validity of what I say in real time.

[Riva]

Ok, point taken Mr. Bumble, my apologies, I retract the comment, probably should have stopped responding to the nonsense a couple of comments ago. I’d delete it but too late I’m afraid.

[not guilty]

Still waiting, Riva. Have you ever litigated a criminal case to jury verdict or an appeal to its conclusion?

[Bruce Hayden]

One problem is that if Smith wasn't legally prosecuting the case, he could not be representing the US. So, everything that he signed wasn’t legally signed. Ditto the prosecutors working for him and filing papers with the court in his name. Every motion to dismiss, etc signed by Smith or one of his minions, was essentially effectively uncontested.

Sure, with enough handholding, a grand jury can indict a ham sandwich. But after that, attorneys have to actually prosecute the case. They file and argue motions, subpoena witnesses, conduct discovery. The US, not being a natural person, must be represented by an attorney. If Judge Cannon is correct, the US never was in this case. Everything evolves from that.

[Scooter]

According to "Not Guilty", the late Senator Herman Talmadge didn't take any bribes, it was his corrupt overcoat.

LMFAO

[not guilty]

Scooter, I appreciate a good non sequitur as much as the next fellow, but WTF? Where on earth do you get that from anything I have said?

[JasonT20]

The criminal case against Trump is not "Jack Smith v. Trump." It is something along the lines of "The People v. Donald J. Trump." Jack Smith is the prosecutor assigned to case, but if Jack Smith is not properly assigned, then it does not follow that the case has to go away as well. The logical remedy is to order the government to properly assign a prosecutor.

Only in cases where prosecutors violate procedures material to the evidence presented (withholding material evidence from the defense, improperly influencing witnesses, etc.) have I ever seen a case thrown out because of something to do with a prosecutor. There was at least one special counsel that also wasn't a DoJ employee, let alone one in a Senate confirmed position, that resulted in convictions or guilty pleas (Robert Mueller), so assigning Jack Smith cannot reasonably be interpreted as some kind of prosecutorial misconduct justifying dismissal.

Both you and Cannon are looking hard for an excuse to dismiss the case against Trump. I would guess it is because the evidence against him is strong enough for a conviction were it to ever get to a jury.

[Riva]

One doesn't actually have to look too hard for the remedy for the ultra vires actions stemming from the unconstitutional appointment of Jack Smith. The remedy was invalidation of his ultra vires actions. Smith didn't propose any alternative himself.

[rswallen]

And fortunately/unfortunately, the case was dismissed without prejudice, meaning the DOJ could in theory appoint someone with the requisite authority to once again bring the case to trial (even if that means seeking a new indictment from a new grand jury).

[Riva]

President Trump will appoint a responsible AG who will not abuse his authority and engage in political prosecutions so that course would be unlikely under President Trump’s new administration. Did I say unlikely? I meant ain't gonna happen.

[kramartini]

Federal Rules of Criminal Procedure Rule 6. The Grand Jury

(d) Who May Be Present.

(1) While the Grand Jury Is in Session. The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.

If Smith was present in the grand jury room while not validly appointed, the indictment is invalid.

[not guilty]

Assuming arguendo that Jack Smith's appointment was defective, do you have any authority that dismissal of the indictment is an applicable remedy, kramartini? Please be specific.

[Noscitur a sociis]

I agree with not guilty that this is not a viable position. While there is some authority that a violation of Rule 6(d) required automatic dismissal, I don’t see how that’s tenable after Bank of Nova Scotia (and more recent cases recognize as much).

If there’s a basis for dismissal, I think it has to lie in Rule 7(c).

[kramartini]

Pretty sure that Bank of Nova Scotia would still allow Cannon's dismissal in this case under 6(d).
But Rule 7(c) is better.

[not guilty]

Have you actually read Justice Kennedy's opinion in Bank of Nova Scotia, kramartini?

How has the grand jury or the Special Counsel diminished or abrogated any substantial rights of Donald Trump, Waltine Nauta or Carlos de Oliveira?

[JesusHadBlondeHairBlueEyes]

Were anyone's rights violated with Smith unnecessary raided his home and then criminally rearranged evidence and put their own secret covers on stacks of papers and then leaked them to the press to taint any jury pools?

[kramartini]

Have you read Bank of Nova Scotia? Do you really believe that Jack Smith did not "substantially influence" the grand jury given that his role was to present evidence and advise the grand jury on the law?

[not guilty]

"Have you read Bank of Nova Scotia? Do you really believe that Jack Smith did not “substantially influence” the grand jury given that his role was to present evidence and advise the grand jury on the law?"

Yes, I have read Bank of Nova Scotia, thank you very much. Have you?

What I believe is quite irrelevant to the issue to be raised before the Court of Appeals. I have litigated hundreds of criminal and civil appeals. If I were to go before an appellate court and say, "May it please the Court, I believe that the lower court got it wrong in this case," that (quite appropriately) would cut no ice. If that affirmation of "belief" were all that I had, I would be lucky not to be sanctioned for pursuing a frivolous appeal. Appellate courts review the record developed in the lower court. Intuition, conjecture and speculation don't feed the bulldog.

In the Trump matter, the interactions between lawyers representing the United States and the grand jurors are foreign to the record developed before the District Court. As I said upthread, in order to show prejudice from any claimed irregularity in the appointment of the Special Counsel, the defendants would need to show that the grand jury would not have indicted if Jay Bratt or any other government attorney not named Jack Smith had presented the case to them.

[Noscitur a sociis]

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. The Fifth Amendment requires nothing more.” Costello v. United States, 350 U.S. 359, 363 (1956)

But if Smith isn’t able to represent the United States, then the indictment isn’t valid on its face.

[Roger S]

Yes, and Smith should not be allowed to pursue an appeal either. Only the US can appeal the order.

[kramartini]

Whether or not he has authority to appeal will depend on the result of the appeal...

[not guilty]

Uh, an attorney does not appeal. A party litigant appeals -- in this case the United States of America. https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.673.0.pdf

[JesusHadBlondeHairBlueEyes]

Hmm... I didn't realize the United States of America was a person who could go down to the court and file an appeal.

Weird.

[not guilty]

Let me break it down for you, JHBHBE. Suppose someone wins a civil judgment for damages against Ford Motor Company, Inc.

Does that corporation's being non-ambulatory mean that it can't appeal the judgment?

[Bruce Hayden]

The Inited States is not a natural person, so is unable to proceed pro se. Rather, to be represented in court, they must utilize and be represented by attorneys. Other federal govt attorneys could take over prosecution - notably the SDFL USA and his AUSAs. Except that if Judge Cannon is correct, the US has been legally unrepresented since the indictment was filed. Every motion by the defense to dismiss was effectively uncontested, etc. It’s a mess, and would take many months to unravel and clean up, and hence her dismissal without prejudice. Cleanest solution is to just have the SDFL USA refile and have his AUSAs prosecute the case.

[kramartini]

You make in interesting point. But your objection would be cured if Jack Smith were to win the appeal, since he would always have been properly appointed.

[windycityattorney]

BUT the whole point of appointing a special counsel was the appearance of a conflict for Biden's executive branch to prosecute his chief opposition in the upcoming election (and former President Trump). If the US Attorney in South FL took over; and they were appointed by Biden, the appearance of conflict doesn't go away.

Note how they didn't go to the special prosecution route until Trump declared he was running for president (against Biden). Trump used the fact he was the leading contender for the GOP nomination numerous times to argue motions in all of his cases (except maybe New York state case? I dont' recall maybe he used it there as well).

Assuming Cannon is right; how does ANY prosecution of Trump take place in federal court? A) conflicted attorney b)???? If A wouldn't Trump then ask for dismissal due to the conflict?

[not guilty]

An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117 (1974).

Fed.R.Crim.P. 52(a) mandates that "[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." This rule has been specifically applied to whether and under what circumstances a grand jury indictment is subject to dismissal. Bank of Nova Scotia v. United States, 487 U.S. 250, 254-255 (1988). "Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rule's mandate than they do to disregard constitutional or statutory provisions." Id., at 255.

To suppose that any substantial rights of Donald Trump, Waltine Nauta or Carlos de Oliveira have been affected by Jack Smith signing the superseding indictment is just plain silly.

[Noscitur a sociis]

As I’ve said, the Rule 7(c) requirement that an attorney for the government sign the indictment embodies the important substantive requirement that the government endorsed the charge. See U.S. v. Wright, 365 F.2d 135, 137 (7th Cir. 1966); U.S. v. Cox, 342 F.2d 167, 172 (5th Cir. 1965). If Cannon is correct, then no one has done that.

Also, this remedy is probably the cleanest procedural vehicle to present the issue on appeal, so it doesn’t seem like Smith should even really be mad about it.

[not guilty]

Once again, where is the prejudice to any substantial rights of Donald Trump, Waltine Nauta or Carlos de Oliveira from an attorney, appointed by the U. S. Attorney General to represent the United States, signing the indictment, though the putative government attorney's appointment was subsequently determined to be ineffective?

To claim that an indictment as to which a properly constituted grand jury has found probable cause is valid if signed by Jay Bratt but invalid if signed by Jack Smith is sheer sophistry.

[Noscitur a sociis]

A defendant has a right to be charged only if a properly-authorized official has decided that the prosecution is in the public interest. If no one did that here, then the prejudice seems pretty obvious. (Certainly there’s a good argument that such an official could ratify the decision now. But no one has.)

[David Nieporent]

As I’ve said, the Rule 7(c) requirement that an attorney for the government sign the indictment embodies the important substantive requirement that the government endorsed the charge. See U.S. v. Wright, 365 F.2d 135, 137 (7th Cir. 1966); U.S. v. Cox, 342 F.2d 167, 172 (5th Cir. 1965). If Cannon is correct, then no one has done that.

And as I said the other day: setting aside the special counsel issue, if it was just noticed that Smith hadn't signed the indictment, the remedy would be for: Smith to sign the indictment. Not for it to be dismissed. So in this case, if it turns out that Smith wasn't authorized to sign the indictment, then the remedy would be for someone else to do so, not for it to be dismissed.

[Rossami]

typo in the third paragraph - "... the power two create ..."

[Estragon]

The typo is intentional and intended to show solidarity with those at whom this piece is directed.

[Hoosier2349]

Not only that, but an egregious that/which error. As written, it means that Smith relied on “each section of the U.S Code” for authority. That sure would be something! Very, very sloppy.

[ObviouslyNotSpam]

That sentence is a real dog's breakfast, but in British English, 'which' still would have been the correct word (without the preceding comma). In any case, English grammar is not Calabresi's main problem...

[Noscitur a sociis]

“Which” without the comma would be fine, in my opinion, if a bit less idiomatic than “that” to my ear: a hard “that/which” distinction is largely an assertionist fable. But with the comma, I think Hoosier2349 is correct.

[James Alp]

Is there anything more annoying than a law student who doesn't know the difference between "principal" and "principle"? Maybe a law professor who doesn't.

[F.D. Wolf]

Most people find pedants infinitely more annoying.

[Kleppe]

Prescriptivists are beyond dull. If it doesn't affect understanding the meaning, who really gives a shit how a native speaker renders their language?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It shows how deep their analysis is. A very shallow bench, so to speak.

[Frank Drackman]

Tell me about it, OK, so I mix up "There" "Their" and "They're" and capitalize Nouns (and other words, you know how mean words can be, one Word gets a capital letter and thinks it's better than the other words, so when in doubt, I capitalize, I'll worry about it the next English Grammar class I take.) Worse are the pompous Asses who say "Back in the Day" "Literally/Basically" "Top of Mind" and "Right?" after a statement (Pete Booty-Judge does this all the time)

Frank

[Mr. Bumble]

...add "out of an abundance of caution" and "problematic".

[Kleppe]

Pointing out spelling errors is just another form of ad hominem; you’re waving the white flat. If you can’t confront the argumentation, pound the spelling! Notably, though, if you were instead presented with OP’s argument in person, you wouldn’t be able to pull that same lever (maybe you would encounter a mispronounced syllable to highlight?)

[Estragon]

“you’re waving the white flat”

It’s a free ride, when all you need is a knife

[Frank Drackman]

Yes, I really do think

[Dan Schiavetta]

"Democrats who are concerned by Judge Cannon's opinion should ask themselves how they would feel, if an Attorney General appointed by a second term President Trump, had the power to create an unlimited number of Special Counsels all of whom were inferior officers as powerful as is Jack Smith?"

Trump has promised to do just that.

[Mr. Bumble]

Sure, just like he did with Hillary.
He'll have much better things to do with his four years.

[Vryedni]

Sure, just like he did with Hillary.

Yeah, except he in fact did try to prosecute Hillary. Comey too. He told Don McGahn to order DOJ to prosecute both. The only thing that prevented it was McGahn telling him that not only didn't McGahn have the authority to order such a prosecution, but that insisting on it would get Trump impeached.

So, since Trump needn't concern himself with winning any more elections, and since Senate Republicans have shown there's pretty much nothing he can do that will get him impeached and convicted, do you think it's more likely the subordinates he hires next time will be like Don McGahn, or that he learned his lesson to stick with MAGA toadies he can rely on to burn down the norms that stand between Trump and his thirst for revenge?

[Kazinski]

And now Trump can't, thanks to Judge Cannon.

[not guilty]

Trump now can't do what, thanks to Judge Cannon?

[Vryedni]

I assume, appoint an Attorney General who "create[s] an unlimited number of Special Counsels all of whom were inferior officers as powerful as is Jack Smith."

[Vryedni]

To be clear, I assume that's what Kazinski meant. It's not my position.

[Kazinski]

Captcrisis: "Trump has promised to do just that."

[JasonT20]

"I will do anything for love, but I won't do that."

Why does a district court judge's ruling prevent Trump from doing anything if he is President again? Answer, it doesn't. District court rulings set no binding precedents.

Even if Cannon's ruling stands on appeal all the way to the SCOTUS, Trump's AG could still appoint as many of the 90+ US Attorneys as he wants as special counsels to go after his enemies, or even get his toadies in the House and Senate to create new ones if he needs more. (Assuming he has the coattails to keep the House and win the Senate.)

[Noscitur a sociis]

Trump’s AG could still appoint as many of the 90+ US Attorneys as he wants as special counsels to go after his enemies

Why would he bother doing that?

[JasonT20]

Why would be bother with special counsels at all? Well, that is a good question. It is possible that he could have such a loyalist AG, deputy AGs and US Attorneys that they will do whatever he wants in prosecuting his enemies even without being made special counsels. Thanks for that. You did make a good point.

[Kazinski]

But he would have to get them confirmed by the Senate, that's the check.

Its a lot easier to get a hatchet man, like Smith, to go after your enemies if you don't need to confirm them.

[JasonT20]

But he would have to get them confirmed by the Senate, that’s the check.

If Republicans control the Senate, is that really a check?

Maybe it will be if it is a very slim majority (like it has been in the House this session). In which case, a couple of Republicans is all it would take to reject a nominee that was also opposed by all Democrats. That is how the full MAGA House members like Matt Gaetz were able to first, force McCarthy to accept all kinds of ridiculous House rules, including the one that led to the second part, ousting McCarthy when he wouldn't give them what they wanted.

And if it is the full Trump loyalists that are few in number in a GOP majority Senate, they would be able to force all kinds of concessions to get their way or they could blow up everything just like Gaetz and Co. did.

[Kazinski]

The Senate is at most going to be 52-48 GOP, with Murkowski (who might go independent) and Collins who won't even vote for Trump in the general election.

And the Senate rules are clear, and not as malleable as.the house rules, they won't be changed by 45 super MAGA senators.

So Senate confirmation will prevent an ultra partisan hatchet man from getting confirmed, as either AG or US attorney.

[JasonT20]

Senate rules are clear, yes, that it takes a majority to confirm a nominee, right?

You might be right about Collins and Murkowski, but that still gives the tie to the GOP (VP vote) unless they lose at least one other Senator.

And it doesn't need to be an "ultra partisan hatchet man" to abuse prosecutorial power. Anyone that is willing to do Trump's bidding is enough. Now, if you would say that anyone willing to do what Trump wants is going to be a "ultra partisan hatchet man," then that sounds like a reason not to vote for Trump.

[Frank Drackman]

Good, both Parkinsonian Joe and Hunter will be dead in a year, no Assassination, just the natural history of Parkinson's and Drug Addiction. Bob Menendez is going to do well in jail, unless he gets the Big Casino like Johnny Sack did

Frank

[Riva]

Nope, he didn't. If anything he has promised to reign in unconstitutional acts and bring some just accountability to parties abusing their authority. But I understand why that would concern you and the slimes currently abusing their power.

[JasonT20]

... bring some just accountability to parties abusing their authority.

I seem to remember some Republicans and other Trump supporters saying that "abusing their authority" is not a "high crime or misdemeanor" that could lead to impeachment in the Ukraine thing in 2019, let alone criminal prosecution. So what kind of accountability does he have in mind?

[Riva]

I guess that would depend on what investigations find and the nature of the abuses. I would advise the democrat hacks to lawyer up.

[JasonT20]

How can we be sure that the investigations find the truth and aren't just lawfare?

[Riva]

Don't elect Democrats.

[JasonT20]

You walked right into my point. You essentially just conceded that your opinions about charges against Trump are "lawfare" because, well, Democrats just do that kind of thing. Whereas Republicans led by Trump won't, because, well, they wouldn't.

[Riva]

You're kind of hurting my feelings. I thought it was rather funny But you might want to ponder that lawfare and abusive investigations are democrat preoccupations.

[Hugh]

When I was in law school a few years back, we learned that an inferior court had to follow the precedent of a superior court. Apparently that is no longer true. If, for example, I want to toss out Marbury v. Madison, McCullough v. Maryland, or Gibbons v. Ogden, all I have to do is find some unscrupulous hack of a federal district court judge to directly rule against Supreme Court precedent. I'm looking forward to an unscrupulous left wing federal judge ruling in direct contradiction to Heller v. DC, just because.

[Noscitur a sociis]

I am significantly more sympathetic than most people here to Prof. Calabresi’s argument, and Judge Cannon’s order. My thoughts:

1. I think Prof. Calabresi makes a facially compelling case that statutes empowering cabinet officials to appoint officers look a standard way, and those statues are conspicuously absent for DOJ.
2. That difference seems like it could be significant.

On the other hand, I note,

1. While it’s a bit of a weird way to do it, 28 U.S.C. § 533 does seem to unambiguously give the Attorney General authority to make this appointment.
2. The Supreme Court said as much in Nixon.

Come at me!

[NvEric]

Yes, 28 U.S.C. § 533 sounds OK, but the person would have to be in the FBI, so Jack Smith would have to be hired first, maybe work his way up so as to not shadow out others with more seniority or position.

[Noscitur a sociis]

but the person would have to be in the FBI

Why?

[JesusHadBlondeHairBlueEyes]

Because that's the context of the statute.

[jb]

And yet! The actual language of the statute in question doesn't say anything about the FBI.

[JesusHadBlondeHairBlueEyes]

Do you actually believe Congress would create an entire section of law creating and defining the FBI but have everything in there that didn’t say “… in the FBI” be broad and generally applicable?

What a massive Loophole Congress missed!

[Riva]

As Judge Cannon notes, this would be an absurd interpretation of a statute devoted to the FBI and entitled "Investigative and other officials; appointment," "Smith’s interpretation would shoehorn appointment authority for United States Attorney equivalents into a statute that permits the hiring of FBI law enforcement personnel." Officials are not constitutional officers in this statute that applies to FBI personnel, lawyers and non-lawyers, "involved in prosecutorial efforts to pursue and/or investigate a crime or claim."

[Riva]

Why? Maybe you should read the statute? It applies to FBI personnel. Moreover it refers to officials, not constitutional officers. Nothing in this statute accords the AG the appointment authority to create a special counsel with more power than a presidentially nominated and senate approved US Attorney.

[Noscitur a sociis]

Yes, as I said in my original comment, this is a weird way to do it. But the statute doesn’t actually say anything about the FBI, and of course the place the codifier happened to put it is of limited interpretive value.

As for the argument that “official” can’t encompass “officer”: that is not an obvious conclusion, to say the least.

[Noscitur a sociis]

Actually, I looked up the actual statute and the chapter title was enacted by Congress. The fact remains that the actual law doesn’t say anything about the FBI.

[Riva]

It's all about the FBI but the relevant and key point is that it says nothing about the AGs authority to appoint constitutional officers, let alone constitutional officers with powers equivalent to a presidential nominated and senate confirmed US Attorney.

[Noscitur a sociis]

The statutes about U.S. Attorneys don’t say anything about “constitutional officers” either! And the one outlining their authority to prosecute crimes sure sounds a lot like § 533(1).

[David Nieporent]

Besides, it's not about the FBI. As someone else pointed out, the statute in question was passed years ago; later, when the whole chapter was reorganized, they put this one in under an FBI heading, but it's the same statute.

[Riva]

What are you talking about? 28 U.S. Code § 541 - United States attorneys: (a)The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.

How ignorant are you people? Pretty f'ing ignorant apparently. And f'ing proud of it.

[Riva]

But i guess one could also say “so what?” to your statutory analysis, Noscitur a sociis. Is your point that US Attorneys can also appoint constitutional officers? On the contrary, you bolster judges Cannon’s analysis.

[jb]

The Supreme Court seems to disagree with you on this point, since 533 is specifically cited in Nixon.

[Riva]

That's called dictum. And unpersuasive dictum at that.

[Kazinski]

I initially missed the fact that 28 U.S.C. § 533 actually does not give authority to appoint “officers”. It confers the authority to appoint ” officials”.

And you are right, that’s not the way Congress would grant the authority to appoint an Officer of the United States.

Nixon really comes down to whether it was dicta or not, although lower court judges should always be cautious about dismissing Supreme Court dicta. But the current SC might not have any problem deciding Nixon didn’t really decide the issue and getting down to the text of the statutes de novo.

[Noscitur a sociis]

And you are right, that’s not the way Congress would grant the authority to appoint an Officer of the United States.

Why not? Are officers not officials?

[Kazinski]

All officers are officials, but most officials are not Officers of the United States, or Inferior officers established by law.

And Smith conceded that officials and officers are not synonymous:

“Section 533(1) authorizes the Attorney General to “appoint officials . . . to detect and prosecute crimes against the United States.” 28 U.S.C. § 533(1). The parties dispute the proper interpretation of the term “officials.” Defendants argue that “officials” is most naturally read as “nonofficer employees”. Special Counsel Smith advances a broader interpretation, arguing that “‘official[s]’ is a generic term that covers both officers and employees”. The Court agrees with Defendant.”

Once Smith conceded that, then he’s lost, because Congress is hardly going to confer such sweeping power using such “generic” language. And Cannon emphasizes Congress must make a clear statement when it delegates power.

A generic term like officials is anything but clear.

[kramartini]

No. Section 533 gives FBI officials the authority to pursue criminals, not merely detect them. "Prosecute" has many meanings.

If there is any power to appoint a special attorney, it comes from Section 543.

[Bruce Hayden]

Ok. I give up. What binding precedent, from the 11th Circuit or Supreme Court that Judge Cannon ignored? Please provide the cite, etc. Mu understanding is that there have been precisely 2 Special Counsels in recent years who were not USAs: Mueller and Smith.

[Noscitur a sociis]

That Robert Hur guy counts for nothing?

[Bruce Hayden]

Not here. Hur is a duly Presidential nominated and Senate confirmed USA. AS HAVE BEEN ALMOST ALL special Prosecutors, since the Independent Counsel statute expired. As far as I know, the exceptions have been Mueller and Smith. And that is really the issue - that Smith was just some guy off the street, while almost all special counsels have been USAs, who are statutory officers.

[Magister]

"Recent years" and "ALMOST ALL" are trying too hard. John Danforth was never a US attorney. Jack Smith had been an acting US attorney, so not really "just some guy off the street". Bruce Hayden's knowledge is as flawed as one would expect.

[Bruce Hayden]

When had Smith been Acting US Attorney? Acting US Attorneys can serve up to 120 days, or when a permanent US Attorney is confirmed by the Senate, whichever happens first. What is important is whether he was an Officer of the US at the relevant times. Because of the 120 day hard limit, and that the Smith investigation has been going on for maybe 3 years, most, if not all, of Smith’s investigations and prosecutions were not white he was an Officer of the US.

[Magister]

So you've backed off from "just some guy off the street"? Tiny steps are better than nothing.

[Kazinski]

Smith may have been an acting US Attorney, but of course that helps make the point he wasn't legitimately appointed as Special Counsel. Congress did explicitly give the AG power to appoint interim US Attorneys, but nowhere did they grant that power for Special Counsels.

[Magister]

Congress considered the current rules for special counsels and did not act to rein in their appointment under those rules for decades.

[Kazinski]

Congress not acting when they needed to act is hardly an argument.

I'll tell you something else Congress didn't do, they didn't extend the Independent Counsel law when it expired, which is why Reno came up with her Special Counsel regulations (which tellingly didn't reference section 533).

[JasonT20]

Congress not acting when they needed to act is hardly an argument.

Sometimes it can be. CJ Roberts basically took Congress's job away in Shelby when the majority opinion (that he wrote) said that Section 3 of the Voting Rights Act was unconstitutional because the formula it applied to decide which jurisdictions would need preclearance was out of date. That is despite the fact that Congress had reauthorized the VRA less than ten years prior. Roberts basically was saying that since Congress didn't 'fix' the VRA, he would have to by gutting Sect. 3.

That is just one example of the Roberts Court usurping legislative power for itself because it thought that Congress not doing something was the wrong political choice.

[jb]

Wait, so is the theory now that "once nominated/confirmed, always nominated/confirmed"? Because Hur was definitely not a confirmed US Attorney at the time he was made Special Counsel.

(Also, I'm too lazy to do the research, but I'd be curious about what fraction of the people arguing that Smith is just a "guy off the street" were complaining about Weiss not being appropriately appointed due to the fact that he was not "outside the United States Government" at the time he as appointed as required by 28 CFR § 600.3. I'm guessing that the answer is basically 100%.)

[Bruce Hayden]

Keep in mind that CFRs cannot override statutes. Which essentially makes 28 CFR § 600.3 irrelevant to the question of whether Smith can legally prosecute this case, since it involves statutory construction and Constitutional Balance of Powers issues. Making things worse, CFRs are completely a product of the Executive Branch, and the Balance of Powers issue is whether that very same Branch overreached in terms of appointing a non-Officer of the US as Special Counsel.

[Riva]

Has Hur ever convened a grand jury and indicted anyone? Kinda thought he gave the Big Guy a pass.

[not guilty]

Uh, prosecutors do not convene grand juries. If Hur had decided to ask for an indictment, he would likely have gone before a grand jury convened by the District Court sitting in Delaware or in the District of Columbia.

[Riva]

Ok, let's put aside your sarcasm. The point is that Hur did not undertake to seek an indictment, did not try anyone one. In sum, did not use the very broad and likely unconstitutional authority the appointment purported to give him in the same way as that thug Smith. So this is all just academic.

[Mr. Bumble]

Given that there is no way Trump goes to trial in Florida before the election (the plan) it's ALL academic.
Miss Fanny's case is shot and now everything rests on the Jan.6 case and Judge Chutkan.

[Riva]

There's always that fat slob Bragg but I suspect that nonsense will go away following the S.Ct.'s ruling.

[JasonT20]

There’s always that fat slob Bragg...

Huh. I have seen a lot of Trump fans and/or other right-wing commentators calling opposing political figures fat. Have they ever looked at Trump?

[Mr. Bumble]

If you want to compare Bragg to Trump you are overdue for an eye exam.

[JasonT20]

Did I mention Bragg? I was saying that calling opposing political figures fat seems to be regular thing among Trump supporters. The plural there means more than just Bragg.

Is this guy fat? One of the things that brought this to mind was Greg Gutfeld calling Bowman fat. Bowman could probably bench press Gutfeld easily, so that is not a description I would use. Trump hasn't been in anything resembling good shape since he was in his 40's, most likely. How about this picture of Trump from 2000?

https://www.gettyimages.com/detail/news-photo/american-real-estate-developer-donald-trump-plays-tennis-at-news-photo/700334624?adppopup=true

At least he was getting some needed exercise.

[Riva]

I think it's more Interesting that you refer to the fat slob Bragg as an opposing political figure. Way to embrace the thuggish lawfare.

[JasonT20]

I think it’s more Interesting that you refer to the fat slob Bragg as an opposing political figure. Way to embrace the thuggish lawfare.

Prosecutors aren't always political figures. But Bragg is a DA, which of course means that they should execute their office in a politically neutral way, but the fact is that they run for office under party identification. Just like state attorney generals, secretaries of state that run the state’s election apparatus, even county supervisors of elections (in Florida for sure) are all partisan offices.

If a Republican DA prosecuting a Democrat politician is not an “opposing political figure” then Bragg would not be an opposing political figure for Trump. But Trump and his supporters sure treat him that way, so I was just going with it.

[David Nieporent]

Uh, prosecutors do not convene grand juries.

They also don't indict people, so Riva managed to be 0-for-2 on that one.

[Noscitur a sociis]

Hur is a duly Presidential nominated and Senate confirmed USA.

As I’m pretty sure I’ve pointed out here before to someone making this exact claim (possibly you!), Hur resigned as a U.S. Attorney nearly two years before his appointment as special counsel.

[CountmontyC]

So we should appoint a new special counsel to look at the evidence and decide if Biden should be charged? I will accept that.

[Kazinski]

Hur doesn’t count because Biden didn’t contest his appointment, plus he didn’t prosecute so Biden had no opportunity to assert his AG illegally appointed Hur.

Weiss counts, because Hunter did contest his appointment, but Weiss had been confirmed and never resigned.

[Magister]

After the expiration of the independent counsel statute, there have been various special counsels appointed; only one was a current US attorney appointed by the sitting President, and Smith and Mueller are not alone in never being US attorneys (although both were past employee of the DOJ, just like those who were previously US attorneys). The point of a special counsel is to get someone from the outside; limiting the choice to current US attorneys seems the exact opposite of that.

[not guilty]

The independent counsel statute expired on June 30, 1999. On September 9, 1999 Attorney General Janet Reno appointed Former Senator John Danforth as Special Counsel to investigate the siege of the Branch Davidian compound at Waco, TX. https://www.policinginstitute.org/wp-content/uploads/2018/02/Danforth-Report-Waco-1993-Incident_11-8-2000.pdf

Danforth had never been a United States Attorney. https://www.dowdbennett.com/attorneys/john-c-danforth/

[Kazinski]

How many prosecutions did Danforth bring?

[ObviouslyNotSpam]

And more importantly, how many children did he father?

[Kazinski]

Well Clarence Thomas was like a son to him.

[Kazinski]

"I’m looking forward to an unscrupulous left wing federal judge ruling in direct contradiction to Heller v. DC, just because."

Well that's already happened.

See Young v Hawaii.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Another one of these exaggerators.

Here is the heart of the question that Judge Cannon was considering: Has Congress delegated to the Attorney General either the power to create inferior officers or the power to create the office of Special Counsel, which Jack Smith fills? In her very detailed and textualist opinion, Judge Cannon persuasively shows that the answer is "no."
Judge Cannon's opinion shows that each Section of the U.S. Code, which Smith relied on, neither delegates to the Attorney General the power two create inferior offices, nor does it create the office of the Special Counsel. Her argument is irrefutable. I have yet to read a response to her opinion that is remotely as persuasive as the opinion itself.

Anyone who has to tell you something is "persuasive" and "irrefutable" is whistling past the graveyard. It shows he doesn't trust the material itself to be its own best advertisement.

[Brett Bellmore]

"Persuasive"? Sure, got a point there, what persuades is entirely subjective.

But "irrefutable" is a more objective matter, since refuting and disagreeing aren't the same thing.

[JoeFromtheBronx]

Sadly, instead of doing that, Attorney General Merrick Garland, a former D.C. Circuit Judge, has chosen to appeal Judge Cannon's ruling to the Eleventh Circuit.

Jack Smith chose to appeal it.

It can't just be a good opinion (which is a stretch). It has to be "indeed better than most Supreme Court opinions" on the question. Okay.

BTW, the president is named Biden. When Obama is being discussed, we don't usually say "President Obama" and so on.

[Kleppe]

"Jack Smith chose to appeal it."

Someone should tell the DOJ that; they released a statement saying they authorized private citizen Jack Smith to appeal the dismissal.

[JoeFromtheBronx]

link?

[Bruce Hayden]

US v Trump?

The problem with Smith appealing is that he doesn’t legally represent the US in the case (anymore, but also ab initio). That’s essentially What Cannon just ruled, and the basis for her dismissal of the case. If he doesn’t represent the US, then how can he file a Notice of Appeal in its name? He could probably appeal in the name of AG Garland. It’s just an issue if he appeals as the special counsel.

[ObviouslyNotSpam]

Well, how did he appeal it?

[not guilty]

The appellant is the United States of America. The signature block includes Jack Smith, Jay I. Bratt and David V. Harbach, II. https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.673.0.pdf

I hope that Team Trump moves to dismiss the appeal on the basis that Bruce Hayden so glibly suggests.

Donald Trump can't resist throwing Br'er Rabbit into the briar patch.

[JoeFromtheBronx]

Someone should tell the DOJ that; they released a statement saying they authorized private citizen Jack Smith to appeal the dismissal.

U.S. v. Trump is a "statement saying they authorized private citizen Jack Smith to appeal the dismissal"?

If you are saying the ruling requires said statement, I still would like to see this "statement" the person is talking about.

[David Nieporent]

The problem with Smith appealing is that he doesn’t legally represent the US in the case (anymore, but also ab initio).

1) Smith didn't appeal. Smith isn't a party to the case, so he can't. The US is the party, and the US appealed.

2) Whether Smith can legally represent the US is (sort of) the question the 11th Circuit has to answer. Cannon's ruling, of course, is not binding on the 11th Circuit.

[kramartini]

Exactly. If Smith wins, he has the right to appeal. If he loses, then he doesn't.

[David Nieporent]

Apparently you only read the second point I wrote and not the first. Smith never has a right to appeal, because he's not a party. Only parties can appeal decisions.

(Exception for pedants: if a lawyer is personally sanctioned, he can appeal.)

[Bruce Hayden]

But, the US is not a natural person, so can only appear in court (etc) represented by attorneys. If Smith isn’t legally qualified to represent the US, then he cannot appeal on behalf of the US. That is not to. Say that no one can appeal in the name of the US – just that Smith can’t. Theoretically, the SDFL USA could appeal, and maybe the SG. Maybe even the Assistant AG for National Security (or Jay Bratt in his name).

[ObviouslyNotSpam]

At least he didn't call it "a perfect opinion".

[Kazinski]

One thing I missed in the discussion on Thursday’s open thread on
28 U.S.C. § 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.
(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.”

This is the main statute Smith claimed gave Garland authority to appoint him as an “inferior officer". The back and forth was mostly about why they would put such an all encompassing grant of power for all of DOJ in Chapter 33 which deals with the FBI.

What I missed is of course it only grants the authority to the AG to appoint officials, not officers. And most assuredly all officers are officials, but not all officials are officers. And I hardly think Congress would be so cavalier about its exclusive constitutional prerogative to make offices by law and the Senate to confirm them.

It makes much more sense to allow the AG to appoint a myriad of minor officials, than give him such sweeping authority to appoint officers.

Calabresi points out in his US v Trump brief why Congress would do no such thing:
“Congress has provided for the Senate-confirmed presidential
appointment of a Deputy Attorney General, Associate Attorney General, Solicitor General, eleven Assistant Attorneys General (plus an Assistant Attorney General for Administration who is in the competitive service, appointed by the Attorney General), and one U.S. Attorney for each judicial district, of which there are ninety-four. A reading of § 533 to empower creating essentially unlimited inferior officers in the Attorney General wreaks havoc on this structure. It would allow the Attorney General to appoint an entire shadow DOJ to replace the functions of every statutorily specified officer. No wonder the Reno Regulations did not invoke it.”

[kramartini]

And why would Congress hide this power in 28 U.S. Code § 533, which deals with the FBI, when it also enacted 28 U.S. Code § 543, which is entitled "Special Attorneys"?

[Noscitur a sociis]

I am anything but an appointments clause expert, but my understanding is that whether a position is an officer is generally functional and depends on the nature of the position, not Congress’s labeling. Note that none of the specific DOJ offices (e.g. Deputy A.G., U.S. Attorney, FBI director) are specifically called officers: we know they’re officers because of what they do.

Under the “pro-special counsel” reading, Section 533(1) authorizes appointment of people doing a wide range of things, some of whom will be officers and some of whom won’t be. I don’t see any reason why “official” wouldn’t encompass that.

The counterargument—and as noted above, I do think it has some force—is that Congress usually frames this situation by granting the authority to appoint “officers and employees”, not “officials”.

[Kazinski]

No the officer designation is not functional, its specifically Congress' labeling Art 2,section 2:

"and all other Officers of the United
States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law: 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."

Its not an officer unless Congress created the office, AND either confirmed them or vested the authority to appoint them.

What is functional is whether a position is required to be an officer to execute its duties, and Smith agreed he needed to be an officer, the dispute was whether he was an "inferior officer", and whether Congress invested the authority to appoint such an officer in the AG.

[ForeignNerd]

How scary, Trump might appoint special counsels! Instead of just having his Attorney General directly conduct the prosecution of his enemies.

[Kazinski]

You miss the fact that Trump would have go have his prosecutors confirmed by the Senate.

I'm not sure Jack Smith could have gotten confirmed by the Senate.

[Mr. Bumble]

Those "Killer Eyez" (H/T Scott Johnson) should be a disqualifier.

[Noscitur a sociis]

Why? Even under your reading of § 533, the attorney general can clearly appoint someone to prosecute crimes: even if you’re correct that they can’t be officers, that just means that they have to be supervised by the attorney general.

[Mr. Bumble]

The AG appointed by Biden.?

[Noscitur a sociis]

You don’t think Trump is going to replace Biden’s cabinet when he takes office?

[Mr. Bumble]

Of course he will. Hopefully from day one along with all of the US Attorneys.
My comment was aimed at your statement: "... that just means that they have to be supervised by the attorney general."
How can they be "independent" if they are supervised by the AG?

[Noscitur a sociis]

What, may I ask, the fuck are you talking about? Who said anything about anyone being independent?

[Bruce Hayden]

Well, the prosecutions are being funded out of an off-budget Independent Counsel fund. If Smith is not independent, then how is that legal?

[Sarcastr0]

It turns out even people appointed by Biden get authority they can delegate down.

Just like even the 11th Circuit supervises lower courts even when those lower courts make rulings in favor of Trump.

[Kazinski]

Are you replying to me?

I am arguing they have to be Officers, which means appointed by the President and confirmed, or an inferior officer that Congress has explicitly granted the AG authority to appoint. (Both sides agree on that too).

And then you seem to be getting confused about just what a Special Counsel is, he is unsupervised by anyone including the AG.

In fact there is a whole discussion of the issue of whether a Special Counsel is a “Inferior Officer” who reports to the AG, or a Principal Officer who can only be removed for cause. Smith makes a “I want my cake and to eat it too” argument, that if Cannon finds the DOJ regulations (which have.the force of law) he was appointed under give him the independence of a Principle Officer, she should assume Garland can narrow the regulation to rein him in to the status of “inferior officer” (where 533 could come into play).

[ForeignNerd]

He would need the AG to be confirmed, not the attorneys actually carrying out the prosecution. The constitutional problem only comes because the Biden adminstration wanted the prosecutor have some independence to make politics play less of a role. No one suggests that every attorney who argues cases in court for the government needs to be appointed, as long as he gets instructions from appointed officers.

[Mr. Bumble]

Not guilty and others like to point out that the 11th Circus has reversed Judge Cannon TWICE. Big fucking deal; she just threw the whole thing back at them by dismissing the case.
Now what? My understanding is that the government has 30 days to file its appeal. So far as I understand it the only thing filed is a notice of intent to appeal.
What is the timeline after an actual appeal has been filed and when could the issue reasonably be expected to be heard by the court?

[Sarcastr0]

Well, I guess the 11th must be a circus because it rules against Trump.
This means inferior court judges should just go to town in favor of Trump, and against the circus.

If that's your position, Bumble, then why do you care about the timeline, since actual legal process seems mostly an annoyance to you?

[not guilty]

“Now what? My understanding is that the government has 30 days to file its appeal. So far as I understand it the only thing filed is a notice of intent to appeal.”

Where are you getting your information, Mr. Bumble? The United States filed its notice of appeal on July 17, which I linked to upthread. https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.673.0.pdf The Eleventh Circuit Court of Appeals on July 18 issued a criminal docketing notice. https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.674.0.pdf

A briefing schedule should follow in due course. In that no transcript need be ordered, the appellant's brief is tentatively due not later than August 27. I would expect the United States to seek an expedited briefing schedule.

[Mr. Bumble]

Thanks. I apparently misunderstood the July 17 filing. The July 18 docket entry just acknowledges that with boiler plate instructions.
So if I understand you correctly, Smith and company have until Aug.27 to file their brief. How long do Trump et al have to file their response?
Even if expedited briefing is granted, how long before the court hears the case? This year? Before the election?

[not guilty]

At present the government's brief is due on or before August 27. The July 18 docketing notice is boilerplate. I expect that a subsequent order will fix deadlines for all briefs, which may call for an earlier date for the government's brief.

Judge Cannon's partisan hackery has made the federal judiciary look bad. When she did that in 2022, the Court of Appeals acted quickly. As Shakespeare wrote in The Tempest, what's past is prologue. The appellate court will move as quickly or as leisurely as it chooses. I suspect that Chief Judge William Pryor will have input on how rapidly the appellate court moves.

[JesusHadBlondeHairBlueEyes]

That must be the only Shakespeare quote you know. You've used it about a dozen times. That or you read it on someone else's blog and like a monkey you're just repeated it because you think it makes you look human.

[not guilty]

Did you hear about the fellow who complained that he didn't like reading Shakespeare because his work was full of clichés?

If you do, don't lend him your ears.

[JesusHadBlondeHairBlueEyes]

As Shakespeare wrote in Hamlet, "Rosencranz, doth quoteth thy so mucheth dost thou have another quoteth?"

That was Act 3 somewhere.

[Bruce Hayden]

Well, they did file a notice of appeal, and the 11th Circuit won’t hear the case until after the election.

[kramartini]

Perhaps SCOTUS made a typographical error in US v NIxon (which was hastily written and handed down 16 days after argument) when it cited to 28 U.S. Code § 533. Wouldn’t citing to 28 U.S. Code § 543 have made more sense?

[David Nieporent]

Not even if you post it 50 more times.

[kramartini]

51?

[ReaderY]

I think it is rather dangerous for a district judge to declare on-point language in a Supreme Court opinion dicta.

But even if Judge Cannon is right on this point, dismissing the indictment hardly seems an appropriate remedy. The indictment was issued by a grand jury that was duly appointed by a court. Under our system of justice grand juries and not prosecutors are responsible for indictments, and courts and not prosecutors convene grand juries. A prosecutor isn’t even necessary for an indictment to be valid.

[kramartini]

The issue is not whether a prosecutor is necessary. It is whether a private citizen entered the grand jury room and substantially influenced the decision to indict.

[Voize]

That can't quite be the issue. Witnesses are often private citizens, and influencing the decision is the whole point of them being there.

[Alpheus W Drinkwater]

What would've been a more appropriate remedy? Not asking rhetorically.

[David Nieporent]

What would’ve been a more appropriate remedy? Not asking rhetorically.

Requiring someone who fits the purported criteria to sign legal papers going forward.

[Bruce Hayden]

Except that they presumably haven’t been properly signed in the past. The US doesn’t appear to have legally entered their appearance in the case. The jury foreman can’t do that. And probably neither could Smith.

[Noel Hillman]

I concur with Professor Calabresi's thoughtful assessment of Judge Cannon's equally thoughtful and comprehensive opinion. If she is not affirmed by the 11th Circuit, she likely has at least five votes in the Supremes for what will be yet another chink in the armor of the over-expansive administrative state. In my view, this case is less about Trump's alleged crimes, grand jury procedure, or statutory authority and more about the broader and more important question of who may exercise core executive power consistent with fundamental notions of the separation of powers. Prof. Calabresi's proposed remedy is readily available and an elegant solution to a problem that has plagued DOJ since Watergate. To his 93 USAs I would add, however, a 94th superior officer, a 10-year term Assistant Attorney General (a PASC) for a new "Integrity Division," a Public Integrity Section on steroids. You may read more of my thoughts, written before but published online after Judge Cannon's decision, here: https://www.law.georgetown.edu/public-policy-journal/in-print-2/volume-22-issue-2/defenses-commensurate-with-the-danger-of-attack-the-special-counsel-regulations-separation-of-powers-and-a-call-for-reform-in-the-department-of-justice/