1/ Judge Aileen Cannon has dismissed the Mar-A-Lago indictment against Former President Donald Trump on the basis of the Appointments Clause of the Constitution, contending that no statute authorized Attorney General Garland to appoint Jack Smith (or anyone) as a Special Counsel.
Link below.
2/ Among the various *egregious* leaps made by Judge Cannon was declaring the following language from the Supreme Court in Nixon v. United States to be non-binding dicta:
"It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties."
3/ Based on my work in patent cases (particularly Arthrex), I'm very familiar with the recent jurisprudence on the Appointments Clause. I'm confident that this is *not* a good faith reading of any of that jurisprudence.
Given SCOTUS's acts in Trump v. US, I have no confidence it will be overturned.
4/4 DOJ possible next steps include:
A. Appeal to 11th Circuit & SCOTUS (process would take into '25);
B. Give up; or
C. Re-indict using the DOJ Public Integrity Unit and US Attorney for SD Florida to run the case.
The only thing I know *for certain* about the future is it hasn't happened yet.
She's also unwinding to November 2022. So they couldn't indict what they've got without more reinterviews.
They could indict today on obstruction though.
Wondering ... : assuming Jack includes the "remove her" in his appeal to the 11th, and they do so ... is that "removal of the judge" something that SCOTUS can overturn, too?
Or would that be some sort of administrative decision free from SCOTUS interference?
They can do A and C in parallel, right?
If we want to fix things like this going forward DOJ MUST take on the courts directly; we have to provoke confrontation that will get media play and will make this an issue of top public concern.
This is a political act wrapped in legal language by Cannon (and her conserv/Fed Soc colleagues with whom she clearly has contact) and the only response that will work is a political act by us wrapped in legal language.
I do not think they can simultaneously appeal and bring a new indictment on the basis of the same acts, but I am not certain about that.
#LawSky - please feel free to weigh in.
I mean, the defense atty in me would be up-in-arms about such an approach if it were my client. And at the very least I'd argue for estoppel by laches.
But this situation is so unusual, I'm not confident of anything right now. I probably wouldn't be confident even after lots of research.
I assume it's up to the special counsel whether to appeal, right? Either way, I wonder if anything would prevent the DOJ/USAO from indicting while the appeals process plays out.
I can tell you the future.
Nothing happens.
They won't say they give up... but they do.
A Trump win on the horizon is what made the judge feel comfortably with this.
They know what's coming.
I'm right there with ya.
Fr fr
What since 2016 has informed your opinion to counter mine?
That sounds like I'm tryna be an asshole, I promise I'm not. I'm looking for light at the end of the tunnel.
Thank you very much.
Let's speculate for a second: assuming Jack includes the "remove her" in his appeal to the 11th, and they do so ... is that "removal of the judge" something that SCOTUS can overturn, too?
Or would that be some sort of administrative decision free from SCOTUS interference?
It likely would be deemed a related case, but that is not certain. I'm confident that, if the DOJ got a different judge assigned, the Trump Defense team would make a motion to have it considered a "related case" and transferred to Judge Cannon.
This decision is pure legal Calvinball.
The implications of J. Cannon's reasoning (assuming it's advanced in good faith, which is at best a rebuttable assumption) are staggering.
Also ignores whole sections of 28 USC, section 515 for example.
And the whole appropriations dicta she put in, it is all subsidiary to the DoJ and comes out of their appropriations, so that is already covered.
I literally learned Constitutional Law from Prof. Tribe (humblebrag acknowledged). I think he's 100% right on the legal questions.
I'm not certain that an appeal makes more sense than a new indictment, because of statute of limitations issues. They can re-indict today, but maybe not after appeals.
I agree that it would be horrible, for the reasons that Prof. Tribe writes.
At this moment (once again), there are only bad options. I am not certain which is the "best bad option available".
www.youtube.com/watch?v=h6H4...
Perhaps. The earliest acts alleged in the indictment are in Winter 2021. I'm not certain that all appeals will be concluded by Winter 2026, with this Supreme Court.
I'm not advocating (or predicting) next steps by DOJ.
I am 100% certain that AG Garland could have Main Justice (Public Integrity) and the US Attorney for the Southern District of Florida bring a new indictment on the same facts alleged in the Mar-A-Lago indictment.
This was always Garland trying to insulate DOJ from political fallout.
The irony here is that if Garland had NOT appointed a SC, Cannon would have dismissed on those grounds instead saying it was improper for. Biden employee (Garland) to be prosecuting his political opponent. In other words, there is no scenario where Cannon allows this case to be tried.
Potential lack of venue. The crime was "willfully retaining" the documents after their return was requested by the National Archives. That crime did not happen until Trump was in the Southern District of Florida. Also, avoids "official act" immunity argument.
