Jack Smith Withdraws From Florida Case, Refers Case to U.S. Attorney for Southern District of Florida

A few moments ago, Jack Smith and his co-counsel filed a motion to withdraw from the Florida case:

Pursuant to Federal Rule of Appellate Procedure 27 and Eleventh Circuit Rule 27-1, the United States of America moves to withdraw from this case the following attorneys: Jay I. Bratt, David V. Harbach, II, James I. Pearce, John M. Pellettieri, and Cecil W. VanDevender. Those attorneys are associated with the Special Counsel's Office, which initiated the criminal prosecution from which this appeal arose. The Special Counsel has now referred this case to the United States Attorney's Office for the Southern District of Florida, which has separately entered an appearance.

The motion did not state whether the defendants oppose the withdrawal.

The U.S. Attorney for the Southern District of Florida has made an appearance.

This move was expected. Smith has already announced that he would no longer prosecute President Elect Trump, based on the Department's reading of the policy against prosecuting the sitting President. However, Smith has left open the possibility that the other two defendants can still be prosecuted. And it seems the U.S. Attorney will cary those prosecutions forward. One would expect that President Trump will promptly pardon both defendants, so this case may not go very far.

Of course, the indictment was secured by Jack Smith. If he was not properly appointed to his position, and lacked the authority to obtain a criminal indictment, then there may still be a constitutional problem. And referring the case to the U.S. Attorney may not cure that problem. Seth and I have addressed this issue before, and we may do so again.

Comments

[Scribe]

Gotta wonder ... if Smith was not lawfully appointed and spent all that government money while not lawfully appointed, is he exposed to liability under the Anti-Deficiency Act?
I see more pardons coming....

[Zarniwoop]

is he exposed to liability under the Anti-Deficiency Act?

No. Next dumb question?

[Longtobefree]

Who is John Galt?

[myself]

With the Trump DOJ just because it's a dumb question doesn't mean the correct answer won't be even more dumb.

[Zarniwoop]

I fully expect de-indicted co-conspirator Trump to pardon his still-indicted co-conspirators. It's a no-brainer. It's nice to be able to pardon the people that could roll on you!

Then he'll claim he was exonerated/witch hunt/no basis.

[Martinned2]

In case you were wondering, this is what a banana republic looks like. The strongman get elected and suddenly all his legal troubles disappear.

[Dr. Ed 2]

We officially became a Banana Republic on August 8, 2022.

Banana Republic is you PROSECUTE your enemies -- which the Dems started.

[Krayt]

Ironically nigh infinite attempts to remove your opponent from office are also a sign of a banana republic.

The Founding Fathers were depressingly awware of the abuses by tyrant kings, and strove to curtail the powerful from turning the power of government against political opponents.

You're halfway there! Will your eyes fully open?

[ObviouslyNotSpam]

Yes, it is evidently difficult to tell the difference between justice and injustice if your brain has been fried by TDS.

(Not knowing what TDS really means is, of course, also TDS.)

[Kazinski]

Actually the case was dismissed months before when no one knew who would be elected.

Smith is passing the appeal to the Senate confirmed U.S. Attorney, which would cure the defect that Judge Cannon found in the prosecution, and possibly moots the case.

Isn't that kind of conceding Cannon was right? There was speculation that DOJ would want to proceed with the case so it would be reversed. But I guess if the case is mooted while on appeal the judgment would be vacated and the precedent erased.

[tylertusta]

This moots the appeal, too.

[John F. Carr]

The appeal is not moot. The indictment was dismissed and the government wants it back. That is a live controversy. An appearance by a properly appointed attorney does not on its own reinstate the indictment.

[David Nieporent]

The case is not in fact moot. The appeal might be.

[Kazinski]

I was of course referring to Cannons ruling that Smith was not a legitimate special counsel would be vacated.

And i suppose that means the indictment is reinstated, but I'm not sure about whether that's the procedure.

But there is another wrinkle, Trump also asked the indictment be dismissed because Smith was spending funds directly from the Treasury that had not been appropriated by Congress, Cannon didn't reach the merits on that question but she seemed sympathetic. But now that question is back on the table.

There is also one more wrinkle coming up, the current US Attorney is going to be replaced in a matter of weeks. The new US Attorney might just tell the Assistant US Attorneys to just drop the case, but pardons are on the table too, and pretty final.

I wonder if they will get the 'Hunter', that is be paroned for all federal crimes between 2014 and 2024 too?

[Noscitur a sociis]

Isn't that kind of conceding Cannon was right?

Not really. Smith knows he’s getting fired in three weeks (if he’s still around), so I don’t think taking appropriate steps for an orderly transition signals much about the merits of anything.

and the precedent erased.

Like any district court opinion, Cannon’s has no precedential value: there’s nothing to erase.

[myself]

There's already a binding precedent. Cannon just ignored it.

[John F. Carr]

There is not binding precedent applicable to the current legal and factual situation. There is precedent on a special prosecutor appointed under a law no longer in effect. There is out of circuit precedent upholding Jack Smith's authority. The other recent special counsel, David Weiss, is a Senate-confirmed officer. The Supreme Court has acted as if the current process is proper without explicitly ruling on the question.

[Riva]

In case you were wondering, the weaponization of law enforcement conducted by the Biden administration through thugs like Smith is what happens in a banana republic.

[MoreCurious]

In case you're wondering, when the voters are willing to ignore the facts that a candidate is a convicted felon, an adjudicated sexual assaulter, a philanderer, a liar, a cheater, and a fraud, you end up with thugs like Trump as the head of an administration that is going to make the worse banana republic look like Disneyland in comparison.

[TLoro]

So good as a So Am dictatorship? We can hope.

[Riva]

To be charged and convicted in a lawfare banana republic farce only establishes that one is a political opponent that threatens the prosecuting regime. That happens in China, Cuba, Russia, N.Korea, and, of course, here, under the watchful eye of the Big Guy.

[Lee Moore]

The relevance of the election is that roughly half the voting public voted for him. Which is not a question of the "strongman" being strong, but of the extreme unlikeliness of getting a jury to convict in a trial widely seen as political.....

..... unless you can arrange to have the trial somewhere with a jury composed entirely of the strongman's political enemies.

I'm not sure Trump will pardon the "co-conspirators" - it's in his interests to see them either acquitted or with hung juries. He can always pardon them later in the unlikely event that they're convicted.

The J6 folk though will get pardoned / commuted pretty quick though.

[ObviouslyNotSpam]

Trump probably would have been convicted in the Florida case.

[Jason Cavanaugh]

"If he was not properly appointed to his position, and lacked the authority to obtain a criminal indictment, then there may still be a constitutional problem. And referring the case to the U.S. Attorney may not cure that problem. Seth and I have addressed this issue before, and we may do so again."

He was properly appointed to his position, based on 50 years of precedent spread across multiple Circuit Court decisions and appeals, regardless of what Aileen Cannon was motivated to do.

In addition to being a legitimate Special Counsel, Jack Smith is also a fucking coward for throwing in the towel. There is no prohibition on prosecuting a "President-Elect" and we have Vice-Presidents for a goddamn reason.

[Dr. Ed 2]

Sorry Jason, people are starting to see the writing on the wall.

I wonder if Jack Smith has made any questionable tax deductions.

[Rubbish!]

At least now Jack can emerge from his basement and get some sun now that his persecutions are coming to a pathetic ending -- complete with sad trombones. The man is sickly looking, pale and gaunt. He looks miserable. He could be an uncredited extra in the next WWII Japanese prison camp movie. Happy he gets a fresh start in 2025 under new leadership for Team USA. Some sun will do the boy good.

[Sarcastr0]

This is a pretty weird comment.

[Longtobefree]

I thought they burst into flames in the sunlight - - - - - - - - - - - -

[Zarniwoop]

The man is sickly looking, pale and gaunt. He looks miserable. He could be an uncredited extra in the next WWII Japanese prison camp movie. Happy he gets a fresh start in 2025 under new leadership for Team USA. Some sun will do the boy good.

Over in reality camp, Jack Smith is a competitive triathlete who's completed 9 IronMan races.

I'll fess up: I sure as hell can't do that.

[TLoro]

At least he uses no makeup to look orange.

[JoeFromtheBronx]

I think "fucking coward" is misused when the net effect is you wind down a prosecution a month or two sooner than strictly necessary.

An actual trial was not going to be coming any time soon here.

Smith has served his civic duty. Misplayed potshots are uncalled for.

[mulched]

McDonnell prosecution, conviction overturned.
John Edwards mistress case, mistrial.
Menendez corruption, mistrial.
Shel Silver, conviction overturned.
Renzi case, sanctioned for wiretapping attorney convos.
Need a rogue prosecutor for a political case? I hear one is coming on the market.

[Bruce Hayden]

“ He was properly appointed to his position, based on 50 years of precedent spread across multiple Circuit Court decisions and appeals, regardless of what Aileen Cannon was motivated to do.”

You need to show your work.

The issue was whether the AG was empowered to appoint an Officer of the US with the power to indict in his own name. The Special Counsel Act specifically empowered the AG to do so. But it expired 32 yeas ago (1992). Since then, Special Prosecutors have almost all been Senate confirmed USAs. Except for two cases (Robert Mueller and Jack Smith). Mueller was never challenged for not being a Senate confirmed Officer of the US. Which leaves Judge Cannon and Jack Smith.

So, shoot away with your 50 years of precedent.

[David Nieporent]

The issue was whether the AG was empowered to appoint an Officer of the US with the power to indict in his own name.

That obviously was not the issue, or even an issue, since only grand juries — not officers, employees, special counsels, or anyone else — have the power to indict.

Except for two cases

That is incorrect, as is every other legal argument you purport to make.

[Riva]

No, he was unconstitutional appointed based entirely on non-compelling dicta by an AG who lacked any statutory authority to make the appointment. Cannon was a federal judge who had the courage to put an end to this DOJ abuse of power.

[Purple Martin]

The man has always looked sickly, pale and gaunt. My theory is that it was all the triathlon training.

From www DOT triathlete DOT com ...

8 Multisport Things to Love/Hate About Special Counsel (and Triathlete) Jack Smith
Whether you believe Smith is your white knight or an Illuminati false flag, we’ve got 8 multisport facts about the special counsel to help fuel either your righteousness or rage.
Published Aug 2, 2023 | Chris Foster

On Tuesday, U.S. special counsel (and triathlete) Jack Smith filed a federal criminal indictment against former president Donald Trump. While the wide-ranging indictment involves questions surrounding Trump’s role in the 2020 election, the real question multisport athletes everywhere want answered this week: How “triathlete” is Jack Smith?
…

1. Jack Smith has competed at two WTS (ITU) Long Distance Triathlon World Championships.
Smith competed for the U.S. in 2008 at the Almere-Amsterdam ITU Long Distance Triathlon World Championships in the 35-39 age group and at the 2018 ITU Long Distance Triathlon World Championships in the 45-49 age group. Being a member of Team USA does bode well for Smith’s level of patriotism.
…

4. Jack Smith has done “over 100 triathlons.”
Smith said in that same Swim NAC interview in 2018 that as of November 2017 he had done 100 triathlons, including nine “Ironmans” and over 20 halfs. With Trump’s indictment spanning 45 pages, it’s a good thing that Smith has years of experience filling out that many entry forms.
…

6. Jack Smith is “a ‘literally insane’ cyclist and triathlete.”
According to a CNN interview with former Eastern District of New York colleague Moe Fodeman, Smith’s tenacity as an investigator who “leaves no stone unturned” and “drills down to get to the true facts,” is due in part to his multisport mastery.

I’m guessing he’s really looking forward to getting back to the training.

[Bruce Hayden]

“With Trump’s indictment spanning 45 pages, it’s a good thing that Smith has years of experience filling out that many entry forms.”

The heavy lifting for the FL documents case indictments was probably done by his deputy, Jay Bratt. Bratt is an expert on classified documents and the like, since his day job was as the branch chief for the DOJ’s Counterintelligence and Export Control Branch. But he also seems to have set up the entire classified documents case, from early in the Biden Administration, when he apparently met with WH counsel.

[Dr. Ed 2]

He COULD have health issues -- it happens to athletes as well.

[Riva]

He may need those skills when he needs to outrun the federal marshals.

[Noscitur a sociis]

Seth and I have addressed this issue before, and we may do so again.

Have you? Because in your amicus brief, you expressly noted that you weren’t addressing it.

[David Nieporent]

I think you missed Part XVII of their last set of law review articles.

[Dan Schiavetta]

"Were all of those things written down, the entire world would not contain all the books that would be written." John 21:25

[Dan Schiavetta]

"One would expect that President Trump will promptly pardon both defendants"

Notice how routine this now seems. Trump, committing an obvious crime, gets out of it by being elected President and will pardon his accomplices. Nixon had to resign for less.

[Kazinski]

The Standard supervillain playbook:
1. Get elected President.
2......

Actually I thought the standad #1 was "Build or steal your own ICBM", which seems to be the route that Elon and Jeff Bezos are following.

So give Trump some points for originality.

[Dr. Ed 2]

ICBMs are sub orbital. They are building orbital and beyond.

[not guilty]

Trump will likely pardon both codefendants. The appeal still deserves to proceed. The incoming DOJ could move the Court of Appeals for voluntary dismissal, which the Court may or may not grant. The parties could stipulate to a dismissal under Fed.R.App.P. 42(b)(1).

I hope that the Eleventh Circuit rules before Trump takes office, which may well happen. The matter is fully briefed, oral argument would add nothing, and Judge Loose Cannon's decision is an embarrassment to the federal judiciary.

[Stephen Lathrop]

Looking for something notable to make of Smith's defeat, I can find two points:

1. He did his best. He was energetic and realistic, after being handed a short time frame, and a stacked judiciary acting as an adversary.

2. Far too many legal professionals, who should have better understood the implications of the point above, kept speculating about workable paths toward trials which could never have happened. Especially, the legal Overton window's demand that a lawyer portray the courts as reliable and legitimate, contributed to those too-complacent estimates.

Those points have left the nation in an only-partly-acknowledged precarious position, making the true situation even more precarious.

What else is there to say, while you watch a miscreant who attempted a coup heading back to power with an ostensibly clean slate?

[Bruce Hayden]

“ What else is there to say, while you watch a miscreant who attempted a coup heading back to power with an ostensibly clean slate?”

So, were Clinton, Gore, etc, and maybe even Harris this coming month, also attempting a “coup” when they challenged election results?

[Dan Schiavetta]

Not a serious response. I invite you to watch videos of Jan. 6, 2021.

[bernard11]

You know, the defenders of Trump's post-2020 election behavior are getting stupider, if that's possible, by the day.

They advance idiotic arguments repeatedly, and having them refuted countless times doesn't change the behavior. It might be mass psychosis. There is definitely something wrong with the likes of Bruce.

[David Nieporent]

So, were Clinton, Gore, etc, and maybe even Harris this coming month, also attempting a “coup” when they challenged election results?

None of Clinton, Gore, etc., or "maybe even Harris" ever challenged election results. Gore is the closest to that description, perhaps, but he was seeking a recount to ascertain what the election results actually were, not trying to overturn them. No, that's not a coup, since that's a process established by law. Note that the moment the Supreme Court said that it was time to stop, he conceded.

Whereas after Trump lost he threatened the people who had said so, submitted forged documents, and then organized an attack to intimidate Congress into accepting those forged documents.

[Commenter_XY]

https://www.youtube.com/watch?v=CyVuYAHiZb8

Seems appropriate. 🙂