Judge dismisses classified documents case against Trump

Much like other lawyers who work for the USAG.

 

The Journal’s editorial board is very Right-Wing compared to the typical WSJ articles, as well as its opinion pieces. If I had a printed copy of the Boards opinion, I would crumple it up and look for a handy trash can.

 

The bigger question most of the time is why is your OPINION something that I should give two sh$ts about?

The whole journalistic practice of "opinion" pieces are supposed be directed about people with extensive knowledge and experience in a key area offering some insights. Such as an opinion piece from a retired general with NATO experience advocating for a country to be included in a bid to expand the alliance, or maybe a former CEO with 20 years of experience in tech speaking out about some sort of important industry trend that is influenced by the public.

Nowadays the "journalistic" outlets abuse this platform to allow pure propaganda, and misinformation. Plain and simple. People who aren't experts at anything other than having a political or financial motive to move people on a self serving topic... or just simply trolling for outrage clicks.

 

It's become clear, or 95% clear, that she's a Maga judge. The conservative legal apologists for her prior missteps have legit theories. A lot of her clerks quit on her, she's overworked, she's not used to these cases because of legal background....it's hard to argue those positions now. It's not her job (federal district judge) to cast aside Supreme Court opinions (even though it's Dicta) interpreting pretty clear laws (even though the WSJ editorial board disagrees and even though they are not 100% special counsel laws). In fact, appellate court already stated that the Dicta was precedent. She can write an opinion that says, "hmm, I'm not 100% of the Constitutionality of this part. Maybe this should be appealed on this basis." That's what district judges do. Her opinion was a, "I'm a playing the role of SCOTUS and this is not just my take, but this is the law, period." WTF? I'll find the law in a bit.

 

So her argument is that the Constitution doesn't allow Jack Smith because 1) he wasn't appointed by the president and confirmed by the senate, or 2) Congress did not make a law allowing for his position to be created. In addition to disregarding Supreme Court and her binding appellate court rulings (meaning she's anointing herself SCOTUS 1 of 1), here are some laws that she is arguing don't say what everyone else says the law says.

https://www.law.cornell.edu/uscode/text/28/533
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 [1]
(3)to assist in the protection of the person of the Attorney General.[2]
(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 section does not limit the authority of departments and agencies to investigate crimes against the United States when investigative jurisdiction has been assigned by law to such departments and agencies.
(Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 616; amended Pub. L. 107–273, div. A, title II, § 204(e), Nov. 2, 2002, 116 Stat. 1776.)

https://www.law.cornell.edu/uscode/text/28/515
28 U.S. Code § 515 - Authority for legal proceedings; commission, oath, and salary for special attorneys
U.S. Code

(a)The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.
(b)Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.

I think Cannon makes an argument here that retained doesn't mean appointed, that it has to be "appointed" by another law. The problem is the plain meaning of the word "retained" and in the normal legal meaning is that "retained" doesn't need another definition. I "retained" a lawyer. Her opinion is nuts.

 

how do Jack Smith's powers differ from a Senate-confirmed district attorney? how is this not an end-run around Senate confirmation of prosecutors?

 

They differ in that they're appointed to help with a focus, not a broad, "let's look through every law and every crime" thing. It's not an end around - it's the law, passed by Congress, cited by SCOTUS, and affirmed as precedent by appellate courts.

Look, I just call it as I see it. The NY judge was biased against Trump. Was he corrupt against Trump? Eh, legal stretching. And that NY law is unconstitutional imo. I also think Biden should be in prison for taking classified info. But Trump broke the law clearly, also should be in prison, and his defense is "mine" which is not a defense. And it's partly Smith's fault for being slow, but definitely not helped by Cannon, who is more abusive in her deference towards Trump than Marchan was against him.

She's a MAGA judge - exactly what judges aren't supposed to be. As someone who holds legit judges in high esteem, this is very upsetting, even though it doesn't really matter in the end because it all goes away if Trump wins the presidency.

 

Neither Pence or Biden willfully retained the documents in question. I've seen you state this before and I don't understanding why Biden/Pence should go to prison when they didn't violate the law.

a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.

 

I read the report and reason not to prosecute was because Biden has a forgetful old man defense. I'll look it over again later.

 

I`m ok if someone accidently takes documents and when asked to look, they realize their mistake and give it back, but dam how lax is the process to take the documents in the first place, don't they have to be checked out and in some cases, they can only be viewed in a SCIF. They need to redefine this process, the staffers should "help" with the process but some other agency should be in charge of going through everything to ensure nothing is taken by mistake

 

I believe that was part of the reason, but I never heard why Pence was not persecuted

 

All of 2016 all I heard was Hilary's private email server and how she should have been locked up. Now the prick that pointed the finger is getting a pass for doing 100 times worst. I just ask that the law be applied fairly to everyone regardless of wealth, status, or political party. Guess that's too much to ask these days...

 

Preserving the Issue of Whether Morrison v. Olson Should Be Overruled
The Special Counsel is squarely on notice that the question of whether Morrison’s holding should be preserved or overruled is at issue.

https://reason.com/volokh/2024/07/1...whether-morrison-v-olson-should-be-overruled/

excerpt:

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

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

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

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

MR. BLACKMAN: Thank you, Your Honor.

[ECF No. 647, p. 112.]​

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

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

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

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

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

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

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That strategy only worked because a MAGA federal district judge took it upon herself to be a Supreme Court Justice. No wonder her staff quit on her.

 

Good video. Skimmed it and it seems to do in depth more about the statutes towards the end. Will watch fully later.

Must repeat the point. It's not her job to overrule the Supreme Court and be a self appointed Justice. In addition to being wrong on the law here, she's being procedurally lawless.

 

https://reason.com/volokh/2024/07/19/judge-aileen-cannons-opinion-in-u-s-v-trump/

Judge Aileen Cannon's Opinion in U.S. v. Trump
by Steven Calabresi
7.19.2024 8:46 PM

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 Council, 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.

STEVEN CALABRESI is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, where he specializes in constitutional law. He also teaches regularly at the Yale Law School. Before going into teaching, he worked in the Reagan White House, and was a Special Assistant for Attorney General Edwin Meese III.

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