Trump Indicted!
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Gori the Grey
The Poster
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That's my hope too. And it's a small potential silver lining. It's not a good claim. It's been tried several times and the courts have always said special prosecutors are legit. Biden has to win, of course. But then if Smith appeals successfully, she's off the case and it can finally be run properly. It was never going to happen before the election; she'd already set that up.
I almost wonder if it is (after the delaying tactic, of course; it is mostly that) an attempt to get herself off the case.
I think if she wanted off the case, she has had numerous points when she could have made that move and resigned. She is a swallower of Trump MAGA.
Yes, in her mind Trump supersedes the law.
Klaus Hergersheimer
King
Because no defendant really dared question the legitimacy of special prosecutors enough to ask, for it to become any sort of issue, until now...
The assumption being, that by nature of their appointment, they have some air of political independence about them.
Obviously this is not true, but we in the US outwardly pretend that it is.
So the question now is: by what statute are special prosecutors allowed?
innonimatu
the resident Cassandra
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These are political prosecutions, political trials. Those have a very simple rule: only politicians who are unpopular at the time can be convicted in a political trial. The popular ones are untouchable. In trump's case he is too popular - you can get a kangoroo court to make something up in NYC but can't execute any sentence.
This judge simply noticed the way the wind is blowing. Won't go down with th team, rather change teams. Plenty of people always do that. Must be doing that right now.
This is banana-republic stuff and America provides numerous examples for study. Look at Brazil recenly: the impeachment of a president and jailing of an allied former president happened only they had lost popularity after the president did the foolishness of imposing "austerity" on the population. It took more than concerted media campain by the upper classes for lawfare to even be possible, it required also a mistake by the targets that left them temporarily exposed.
Then Bolsonaro screwed up so much that he got the same treatment.
The US went down the banana-republic path. Welcome to the club. It's hard to leave it. Just desserts I say, considering the role played in that one in Brazil. Bad acts create bad habits.
This judge simply noticed the way the wind is blowing. Won't go down with th team, rather change teams. Plenty of people always do that. Must be doing that right now.
This is banana-republic stuff and America provides numerous examples for study. Look at Brazil recenly: the impeachment of a president and jailing of an allied former president happened only they had lost popularity after the president did the foolishness of imposing "austerity" on the population. It took more than concerted media campain by the upper classes for lawfare to even be possible, it required also a mistake by the targets that left them temporarily exposed.
Then Bolsonaro screwed up so much that he got the same treatment.
The US went down the banana-republic path. Welcome to the club. It's hard to leave it. Just desserts I say, considering the role played in that one in Brazil. Bad acts create bad habits.
A Trump appointed judge, who has been abusing her office repeatedly to try to pay off a political favor, finally just flat out broke the law in favor of Trump.
Please stop embarrassing yourself by posting stupid stuff that is wrong and inaccurate at every level. You apparently are inerrant about how the the US justice systems work at the federal and state levels.
Lexicus
Deity
I would like to take this opportunity to point some stuff out. Here are the yea votes for Judge Cannon:
Barrasso (R-WY)
Blackburn (R-TN)
Blunt (R-MO)
Boozman (R-AR)
Capito (R-WV)
Carper (D-DE)
Cassidy (R-LA)
Collins (R-ME)
Coons (D-DE)
Cornyn (R-TX)
Cortez Masto (D-NV)
Cotton (R-AR)
Cramer (R-ND)
Crapo (R-ID)
Cruz (R-TX)
Daines (R-MT)
Enzi (R-WY)
Ernst (R-IA)
Feinstein (D-CA)
Fischer (R-NE)
Gardner (R-CO)
Graham (R-SC)
Grassley (R-IA)
Hassan (D-NH)
Hawley (R-MO)
Hoeven (R-ND)
Hyde-Smith (R-MS)
Inhofe (R-OK)
Johnson (R-WI)
Jones (D-AL)
Kaine (D-VA)
Kennedy (R-LA)
Lankford (R-OK)
Leahy (D-VT)
Lee (R-UT)
Manchin (D-WV)
McConnell (R-KY)
McSally (R-AZ)
Murkowski (R-AK)
Murphy (D-CT)
Perdue (R-GA)
Portman (R-OH)
Roberts (R-KS)
Romney (R-UT)
Rosen (D-NV)
Rounds (R-SD)
Rubio (R-FL)
Sasse (R-NE)
Scott (R-FL)
Scott (R-SC)
Shelby (R-AL)
Thune (R-SD)
Tillis (R-NC)
Toomey (R-PA)
Warner (D-VA)
Wicker (R-MS)
By my count, that's a dozen Democrats (bold). Some of these people are dead (Feinstein, haha). Some have left the Senate or left the Democrats.
The rest should be primaried and gotten rid of in the next possible election cycle. Seriously, having voted to confirm that clown should be a career-ending scandal for these Democrats.
Will it be?
innonimatu
the resident Cassandra
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These selective prosecutions against Trump (while Biden, Clinton, etc were let off) show that your country is, at the top level of politics, a banana republic where those with a degree of control over the judiciary branch use it to attemp to neutralize political opponents.
The case of the "secret documents" was crass after Hillary and Biden had done it with barely a slap on the wrist, no prosecution. Face it. You need not like hearing it called for what it is - banana republic - it these selective prosecutions are a fact. And you have repeatedly shown glee here over Trump being targeted with lawfare, and home it would bring him down. You support it.
Lexicus
Deity
First part is backwards while the second part is absolutely right - but the group using its control over the judiciary to destroy the norms of politics is the Republicans. It is funny how you can decry the "political prosecutions" of Trump but crickets at the Supreme Court declaring Presidents have "absolute immunity" when normally you (imo, mostly correctly) tend to criticize the centralization of power.
Gori the Grey
The Poster
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The One Good Deal Trump Evidently Did Once Make
DEMON: Ok, Mr. Trump. We both know why we’re here. Let’s hear your conditions.
TRUMP: I get all my dad’s money when he dies.
DEMON: Ok.
TRUMP: Including the money that’s supposed to go to my brother’s family.
DEMON: Ok.
TRUMP: And no matter how badly I conduct business, I’ll always have piles of money.
DEMON: Well . . .
TRUMP: Like even if I go bankrupt, like six times, say, I’ll still have tons of money.
DEMON: Look, we can grant lots of things, but I’m not sure that one’s mathematically possible.
TRUMP: Just make banks keep lending me money no matter how many of my businesses fail.
DEMON: Ok, Mr. Trump. We both know why we’re here. Let’s hear your conditions.
TRUMP: I get all my dad’s money when he dies.
DEMON: Ok.
TRUMP: Including the money that’s supposed to go to my brother’s family.
DEMON: Ok.
TRUMP: And no matter how badly I conduct business, I’ll always have piles of money.
DEMON: Well . . .
TRUMP: Like even if I go bankrupt, like six times, say, I’ll still have tons of money.
DEMON: Look, we can grant lots of things, but I’m not sure that one’s mathematically possible.
TRUMP: Just make banks keep lending me money no matter how many of my businesses fail.
Spoiler The rest is spoilered for length :
Last edited:
innonimatu
the resident Cassandra
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I don't bother commenting on that because I don't see a long running thread about it here. But this lawfare against Trump started right with the russiagate fabrication and has not stopped. 8 years, one would expect people could have learned something already? The rest of the world looks on it because the US is so good at exporting its media circus (or rather, journalists in many other countries are so lazy and incapable at foreign languages other than english) and it doesn't look good at all. It's pathetic I tell you. Anyone from another banana republic (I should know) can recognize it for what it is. Political lawfare. So what if "both sides" are doing it? In this particular case it's crass. And it's a failure.
Trump's political opponets could have fought him on policy. They claim his policies are bad, so that ought to be easy. Why are they losing?
Trump's political opponents could have fought him on charisma, or popularity. They claim is mean. So why can't they put up a better candidate? Why did they select another mean and now senile old man?
Instead, and because they have only contemp for the people they want to rule over, they put up an incapable candidade and set about on forcing his election.
You're supporting losers. An entitled elite who splits the prestigious and profitable upper bureaucracy and corporate jobs controls both parties. But the band on the democrats's group are the worst side of the coin because despite all the levers of influence they controlled recently (through their alliance with teh security state bureaucracy) they lost to Trump once and will lose again. They only won in 2020 because the state security services (remenber those 50 liars, the jobs they held and hold?) and most of the media colluded to lie and deceive the public about the very real Biden laptop with evidence of criminal behaviour.
Trump may be a liar but he had a point about the lying media, what was a huge political scandal was simply censored. Neither the democrats not the republicans wanted to fight Trump on policy because they won't lower themlseves to do antthing popular with the plebs, so they tried judicial intimidation on the unholly candidate who was a populist. But he's too popular to be put in jail. These guys (the DNC and everyone in its orbit) are not just privileged, sociopathic manipulators, they're incompetent also. Why you bother supporting that band, I cannot understand. It's like supporting Starmer and his ilk in the UK, or Macron in France. They all despise the plebs they rule over. They despise you. And they live in their own bubble where they always get what they want. Trump visibly frustrating them is a big part of his popular appeal, the defeat of this lawfare against him only adds to it. So, to answer your question: this is much more politically revelant that whatever the weather-vanes in the the supreme court state. Presidents there always had de feacto immunity, nothing changed. But Trump pissing off the rotten elites of the country, that can lead them to act too crass, misssep too much. It has potential of changing something. Unlike the SC which is merely a corporate body of the will of those elites.
The legal case against Cannon's dismissal
By Neal K. Katyal
Mr. Katyal is a professor at Georgetown University Law Center and has argued over 50 cases before SCOTUS
Judge Aileen Cannon’s decision to throw out serious national-security criminal charges in the classified documents case against Donald Trump is legally unsupported, ignores decades of precedent and is deeply dangerous.
At a time when Americans need to trust their institutions, her decision to declare that the appointment of the special counsel overseeing the case, Jack Smith, “violates the Appointments Clause of the United States Constitution” will undermine that trust and the legitimacy of high-level investigations in the eyes of many Americans. Her decision is quite unlikely to survive the tests of time, or even the appeal Mr. Smith’s office said he intends to make. But it will further delay a case that has moved so slowly under her direction that it was already virtually certain it would never go to a jury before Election Day.
Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.
Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant to the attorney general or special attorney” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.” Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.” These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law.
I drafted the special counsel regulations for the Justice Department to replace the Independent Counsel Act in 1999 when I worked at the department. Janet Reno, the attorney general at the time, and I then went to Capitol Hill to brief Congress on the proposed rules over a period of weeks. We met with House and Senate leaders, along with their legal staffs, as well as the House and Senate Judiciary Committees. We walked them extensively through each provision. Not one person raised a legal concern in those meetings. Indeed, Ken Starr, who was then serving as an independent counsel, told Congress that the special counsel regulations were exactly the way to go.
Eight separate judges had already rejected the claim that Judge Cannon has now endorsed (including, by the way, the judge presiding over Hunter Biden’s criminal case). It is true that one Supreme Court justice, Clarence Thomas, recently wrote a concurring opinion in the Trump immunity case questioning the legality of the position of special counsel. No other justice joined that opinion, and even Justice Thomas did not come to the conclusions that Judge Cannon did — he simply raised “essential questions” about the office. And his questions ignored a well-trod tradition in America as well as the statutory landscape. We’ve had special counsels and special prosecutors since at least the time of President Ulysses Grant after the Civil War. That is for a simple reason: We need a system to police high-level executive branch wrongdoing, and the system can’t be run by the president and his appointees alone.
Consider the real-world implication of what Judge Cannon is saying: Under her opinion, Attorney General Garland, not a nonpartisan prosecutor like Mr. Smith, would himself be required to investigate and prosecute the case against Mr. Trump. But Mr. Garland was appointed by President Biden, Mr. Trump’s political rival. Doing so would open himself up to all sorts of accusations. The converse is even scarier: Imagine a future president suspected of serious wrongdoing. Do we really want his appointee to be the one investigating the wrongdoing? The potential for a coverup, or at least the perception of one, is immense, which would do enormous damage to the fabric of our law.
We had exactly that situation in Watergate. A special prosecutor, Leon Jaworski, sought President Richard Nixon’s Oval Office tapes. Nixon claimed that the prosecutor could not force the release of the tapes because it was an “intra-branch dispute” where the president’s decision was “final.” The Supreme Court, in a unanimous decision, United States v. Nixon, pointedly rejected the claim, saying “Congress has vested in the attorney general” the power to conduct criminal investigations of the government and “vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.” And what laws did the court cite? The very same statutes, Sections 515 and 533, that Mr. Garland cited when appointing Mr. Smith. “Acting pursuant to those statutes,” the Supreme Court continued, the attorney general “has delegated the authority to represent the United States in these particular matters to a special prosecutor with unique authority and tenure.”
Judge Cannon tried to dismiss those words as “dicta,” meaning that they were not part of the holding of the case, and thus did not constitute a precedent. In fact, they were critical to the court’s holding (and a lot more critical than Justice Thomas’s one-justice concurrence in the Trump immunity case, which she cited several times). Decades have elapsed since the Nixon decision and yet Congress never once altered these laws.
That was so, even though the Justice Department put Congress on clear notice some 25 years ago that it was reading these statutes to authorize the job of special counsel. Congress remained silent even after it saw presidents of both political parties rely on these statutes to do exactly that. And Congress’s silence remained even after court after court in the wake of the Nixon decision read these statutes to authorize the special counsel. None of those were dicta, or even close. That congressional ratification of what the Supreme Court and lower courts found is more than enough to dispose of Judge Cannon’s entire argument.
The Nixon case is not the only Supreme Court decision Judge Cannon blew past. This year, the Supreme Court examined a challenge to the Consumer Finance Protection Bureau, where the challengers said that the board had to be specifically authorized and funded by Congress. In a 7-to-2 originalist decision written by, yes, Justice Thomas, the court said that the Constitution requires no “more than a law that authorizes the disbursement of specified funds for identified purposes.”
That’s exactly what we have here — a statute of Congress that authorizes the Justice Department to spend money on investigations as it deems necessary. Again, if Congress doesn’t like that statute, it can repeal it anytime. Or it can vote to defund Jack Smith’s office. That’s the way our constitutional structure works, not by having a federal judge repeal a statute through judicial fiat. She is a federal judge, not a legislator.
The Court of Appeals for the 11th Circuit, which will hear the promised appeal by Mr. Smith, has already swiftly rebuked Judge Cannon on two different matters for her decisions in the Trump case that were well out of mainstream thinking about the law. This decision is on the way to a third rebuke for her. Mr. Smith’s brief to the Court of Appeals will write itself. He will presumably cite the Nixon case, the several federal laws enacted by Congress, and point to the fact that Congress has never altered the statutes that the Supreme Court more than half a century ago said authorize special counsels. The fact that court after court has read them to authorize special counsels, and that Congress has never once questioned what the courts have done, will settle the legal question in Mr. Smith’s favor.
In his planned appeal, the only question left for him is whether to take the further step of saying a third rebuke means that Judge Cannon should be removed from the case, based on her highly erratic decisions. Her conclusion that the special counsel is illegal is, after all, not one that is a matter of interpretation. Rather, it’s one where there is a clear legal answer, given by the Supreme Court decades ago and ratified by Congress.
www.nytimes.com
The Dismissal of the Trump Classified Documents Case Is Deeply Dangerous
July 15, 2024, 9:23 p.m. ETBy Neal K. Katyal
Mr. Katyal is a professor at Georgetown University Law Center and has argued over 50 cases before SCOTUS
Judge Aileen Cannon’s decision to throw out serious national-security criminal charges in the classified documents case against Donald Trump is legally unsupported, ignores decades of precedent and is deeply dangerous.
At a time when Americans need to trust their institutions, her decision to declare that the appointment of the special counsel overseeing the case, Jack Smith, “violates the Appointments Clause of the United States Constitution” will undermine that trust and the legitimacy of high-level investigations in the eyes of many Americans. Her decision is quite unlikely to survive the tests of time, or even the appeal Mr. Smith’s office said he intends to make. But it will further delay a case that has moved so slowly under her direction that it was already virtually certain it would never go to a jury before Election Day.
Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.
Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant to the attorney general or special attorney” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.” Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.” These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law.
I drafted the special counsel regulations for the Justice Department to replace the Independent Counsel Act in 1999 when I worked at the department. Janet Reno, the attorney general at the time, and I then went to Capitol Hill to brief Congress on the proposed rules over a period of weeks. We met with House and Senate leaders, along with their legal staffs, as well as the House and Senate Judiciary Committees. We walked them extensively through each provision. Not one person raised a legal concern in those meetings. Indeed, Ken Starr, who was then serving as an independent counsel, told Congress that the special counsel regulations were exactly the way to go.
Eight separate judges had already rejected the claim that Judge Cannon has now endorsed (including, by the way, the judge presiding over Hunter Biden’s criminal case). It is true that one Supreme Court justice, Clarence Thomas, recently wrote a concurring opinion in the Trump immunity case questioning the legality of the position of special counsel. No other justice joined that opinion, and even Justice Thomas did not come to the conclusions that Judge Cannon did — he simply raised “essential questions” about the office. And his questions ignored a well-trod tradition in America as well as the statutory landscape. We’ve had special counsels and special prosecutors since at least the time of President Ulysses Grant after the Civil War. That is for a simple reason: We need a system to police high-level executive branch wrongdoing, and the system can’t be run by the president and his appointees alone.
Consider the real-world implication of what Judge Cannon is saying: Under her opinion, Attorney General Garland, not a nonpartisan prosecutor like Mr. Smith, would himself be required to investigate and prosecute the case against Mr. Trump. But Mr. Garland was appointed by President Biden, Mr. Trump’s political rival. Doing so would open himself up to all sorts of accusations. The converse is even scarier: Imagine a future president suspected of serious wrongdoing. Do we really want his appointee to be the one investigating the wrongdoing? The potential for a coverup, or at least the perception of one, is immense, which would do enormous damage to the fabric of our law.
We had exactly that situation in Watergate. A special prosecutor, Leon Jaworski, sought President Richard Nixon’s Oval Office tapes. Nixon claimed that the prosecutor could not force the release of the tapes because it was an “intra-branch dispute” where the president’s decision was “final.” The Supreme Court, in a unanimous decision, United States v. Nixon, pointedly rejected the claim, saying “Congress has vested in the attorney general” the power to conduct criminal investigations of the government and “vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.” And what laws did the court cite? The very same statutes, Sections 515 and 533, that Mr. Garland cited when appointing Mr. Smith. “Acting pursuant to those statutes,” the Supreme Court continued, the attorney general “has delegated the authority to represent the United States in these particular matters to a special prosecutor with unique authority and tenure.”
Judge Cannon tried to dismiss those words as “dicta,” meaning that they were not part of the holding of the case, and thus did not constitute a precedent. In fact, they were critical to the court’s holding (and a lot more critical than Justice Thomas’s one-justice concurrence in the Trump immunity case, which she cited several times). Decades have elapsed since the Nixon decision and yet Congress never once altered these laws.
That was so, even though the Justice Department put Congress on clear notice some 25 years ago that it was reading these statutes to authorize the job of special counsel. Congress remained silent even after it saw presidents of both political parties rely on these statutes to do exactly that. And Congress’s silence remained even after court after court in the wake of the Nixon decision read these statutes to authorize the special counsel. None of those were dicta, or even close. That congressional ratification of what the Supreme Court and lower courts found is more than enough to dispose of Judge Cannon’s entire argument.
The Nixon case is not the only Supreme Court decision Judge Cannon blew past. This year, the Supreme Court examined a challenge to the Consumer Finance Protection Bureau, where the challengers said that the board had to be specifically authorized and funded by Congress. In a 7-to-2 originalist decision written by, yes, Justice Thomas, the court said that the Constitution requires no “more than a law that authorizes the disbursement of specified funds for identified purposes.”
That’s exactly what we have here — a statute of Congress that authorizes the Justice Department to spend money on investigations as it deems necessary. Again, if Congress doesn’t like that statute, it can repeal it anytime. Or it can vote to defund Jack Smith’s office. That’s the way our constitutional structure works, not by having a federal judge repeal a statute through judicial fiat. She is a federal judge, not a legislator.
The Court of Appeals for the 11th Circuit, which will hear the promised appeal by Mr. Smith, has already swiftly rebuked Judge Cannon on two different matters for her decisions in the Trump case that were well out of mainstream thinking about the law. This decision is on the way to a third rebuke for her. Mr. Smith’s brief to the Court of Appeals will write itself. He will presumably cite the Nixon case, the several federal laws enacted by Congress, and point to the fact that Congress has never altered the statutes that the Supreme Court more than half a century ago said authorize special counsels. The fact that court after court has read them to authorize special counsels, and that Congress has never once questioned what the courts have done, will settle the legal question in Mr. Smith’s favor.
In his planned appeal, the only question left for him is whether to take the further step of saying a third rebuke means that Judge Cannon should be removed from the case, based on her highly erratic decisions. Her conclusion that the special counsel is illegal is, after all, not one that is a matter of interpretation. Rather, it’s one where there is a clear legal answer, given by the Supreme Court decades ago and ratified by Congress.
Opinion | The Dismissal of the Trump Classified Documents Case Is Deeply Dangerous
Eight federal judges have rejected the claim that Judge Aileen Cannon has now endorsed that no law authorizes the appointment of a special counsel.
aelf
Ashen One
In this era, you either die young or live to see leftists become Trump cheerleaders. I guess age and parochialism trump ideology at some point.
Senethro
Overlord
Sometimes when you write I can't tell what you think is always bad, and what you think is just bad when done to/by specific parties you have an enmity/preference for.
Lexicus
Deity
How can you tell the difference between a political prosecution and a regular prosecution of a person who happens to be a politician or otherwise politically significant?
Klaus Hergersheimer
King
Consider the real-world implication of what Judge Cannon is saying: Under her opinion, Attorney General Garland, not a nonpartisan prosecutor like Mr. Smith, would himself be required to investigate and prosecute the case against Mr. Trump. But Mr. Garland was appointed by President Biden, Mr. Trump’s political rival. Doing so would open himself up to all sorts of accusations. The converse is even scarier: Imagine a future president suspected of serious wrongdoing. Do we really want his appointee to be the one investigating the wrongdoing? The potential for a coverup, or at least the perception of one, is immense, which would do enormous damage to the fabric of our law.The legal case against Cannon's dismissal
The Dismissal of the Trump Classified Documents Case Is Deeply Dangerous
July 15, 2024, 9:23 p.m. ET
By Neal K. Katyal
Mr. Katyal is a professor at Georgetown University Law Center and has argued over 50 cases before SCOTUS
Judge Aileen Cannon’s decision to throw out serious national-security criminal charges in the classified documents case against Donald Trump is legally unsupported, ignores decades of precedent and is deeply dangerous.
At a time when Americans need to trust their institutions, her decision to declare that the appointment of the special counsel overseeing the case, Jack Smith, “violates the Appointments Clause of the United States Constitution” will undermine that trust and the legitimacy of high-level investigations in the eyes of many Americans. Her decision is quite unlikely to survive the tests of time, or even the appeal Mr. Smith’s office said he intends to make. But it will further delay a case that has moved so slowly under her direction that it was already virtually certain it would never go to a jury before Election Day.
Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.
Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant to the attorney general or special attorney” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.” Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.” These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law.
I drafted the special counsel regulations for the Justice Department to replace the Independent Counsel Act in 1999 when I worked at the department. Janet Reno, the attorney general at the time, and I then went to Capitol Hill to brief Congress on the proposed rules over a period of weeks. We met with House and Senate leaders, along with their legal staffs, as well as the House and Senate Judiciary Committees. We walked them extensively through each provision. Not one person raised a legal concern in those meetings. Indeed, Ken Starr, who was then serving as an independent counsel, told Congress that the special counsel regulations were exactly the way to go.
Eight separate judges had already rejected the claim that Judge Cannon has now endorsed (including, by the way, the judge presiding over Hunter Biden’s criminal case). It is true that one Supreme Court justice, Clarence Thomas, recently wrote a concurring opinion in the Trump immunity case questioning the legality of the position of special counsel. No other justice joined that opinion, and even Justice Thomas did not come to the conclusions that Judge Cannon did — he simply raised “essential questions” about the office. And his questions ignored a well-trod tradition in America as well as the statutory landscape. We’ve had special counsels and special prosecutors since at least the time of President Ulysses Grant after the Civil War. That is for a simple reason: We need a system to police high-level executive branch wrongdoing, and the system can’t be run by the president and his appointees alone.
Consider the real-world implication of what Judge Cannon is saying: Under her opinion, Attorney General Garland, not a nonpartisan prosecutor like Mr. Smith, would himself be required to investigate and prosecute the case against Mr. Trump. But Mr. Garland was appointed by President Biden, Mr. Trump’s political rival. Doing so would open himself up to all sorts of accusations. The converse is even scarier: Imagine a future president suspected of serious wrongdoing. Do we really want his appointee to be the one investigating the wrongdoing? The potential for a coverup, or at least the perception of one, is immense, which would do enormous damage to the fabric of our law.
We had exactly that situation in Watergate. A special prosecutor, Leon Jaworski, sought President Richard Nixon’s Oval Office tapes. Nixon claimed that the prosecutor could not force the release of the tapes because it was an “intra-branch dispute” where the president’s decision was “final.” The Supreme Court, in a unanimous decision, United States v. Nixon, pointedly rejected the claim, saying “Congress has vested in the attorney general” the power to conduct criminal investigations of the government and “vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.” And what laws did the court cite? The very same statutes, Sections 515 and 533, that Mr. Garland cited when appointing Mr. Smith. “Acting pursuant to those statutes,” the Supreme Court continued, the attorney general “has delegated the authority to represent the United States in these particular matters to a special prosecutor with unique authority and tenure.”
Judge Cannon tried to dismiss those words as “dicta,” meaning that they were not part of the holding of the case, and thus did not constitute a precedent. In fact, they were critical to the court’s holding (and a lot more critical than Justice Thomas’s one-justice concurrence in the Trump immunity case, which she cited several times). Decades have elapsed since the Nixon decision and yet Congress never once altered these laws.
That was so, even though the Justice Department put Congress on clear notice some 25 years ago that it was reading these statutes to authorize the job of special counsel. Congress remained silent even after it saw presidents of both political parties rely on these statutes to do exactly that. And Congress’s silence remained even after court after court in the wake of the Nixon decision read these statutes to authorize the special counsel. None of those were dicta, or even close. That congressional ratification of what the Supreme Court and lower courts found is more than enough to dispose of Judge Cannon’s entire argument.
The Nixon case is not the only Supreme Court decision Judge Cannon blew past. This year, the Supreme Court examined a challenge to the Consumer Finance Protection Bureau, where the challengers said that the board had to be specifically authorized and funded by Congress. In a 7-to-2 originalist decision written by, yes, Justice Thomas, the court said that the Constitution requires no “more than a law that authorizes the disbursement of specified funds for identified purposes.”
That’s exactly what we have here — a statute of Congress that authorizes the Justice Department to spend money on investigations as it deems necessary. Again, if Congress doesn’t like that statute, it can repeal it anytime. Or it can vote to defund Jack Smith’s office. That’s the way our constitutional structure works, not by having a federal judge repeal a statute through judicial fiat. She is a federal judge, not a legislator.
The Court of Appeals for the 11th Circuit, which will hear the promised appeal by Mr. Smith, has already swiftly rebuked Judge Cannon on two different matters for her decisions in the Trump case that were well out of mainstream thinking about the law. This decision is on the way to a third rebuke for her. Mr. Smith’s brief to the Court of Appeals will write itself. He will presumably cite the Nixon case, the several federal laws enacted by Congress, and point to the fact that Congress has never altered the statutes that the Supreme Court more than half a century ago said authorize special counsels. The fact that court after court has read them to authorize special counsels, and that Congress has never once questioned what the courts have done, will settle the legal question in Mr. Smith’s favor.
In his planned appeal, the only question left for him is whether to take the further step of saying a third rebuke means that Judge Cannon should be removed from the case, based on her highly erratic decisions. Her conclusion that the special counsel is illegal is, after all, not one that is a matter of interpretation. Rather, it’s one where there is a clear legal answer, given by the Supreme Court decades ago and ratified by Congress.
Opinion | The Dismissal of the Trump Classified Documents Case Is Deeply Dangerous
Eight federal judges have rejected the claim that Judge Aileen Cannon has now endorsed that no law authorizes the appointment of a special counsel.
I've one thing to say just on this:
That does not imply any "conflict of interest" beyond having mere political differences, that some special prosecutor had to be brought in. The perception that Biden has some political motive in prosecuting former-president Trump was always going to be inevitable.
To at least mitigate that appearance, the Atty General could have at least appointed a career US attorney to the role, specifically a Florida one where the documents were hidden anyway. For whatever reason, he did not even plan for such contingency.
