The degree of Smith's independence is crucially at issue. If he's too independent — that is, if he's not an "inferior" officer within the meaning of the Constitution — he needs to have been appointed by the President and confirmed by the Senate. He was not.
The judge’s intense dive into an issue that has been brushed aside by most other courts has caused head-scratching in the legal community and drawn renewed criticism of her handling of the sensitive case.
Head-scratching, eh? It's a perfectly comprehensible issue to anyone who's been through the first semester of Constitutional Law in law school. If anyone in that category is looking puzzled, I think they're engaging in mime. Don't be conned.
And Pearce does look like he's hiding something. And that's not a mimed argument. That's a slip that he feels bad about. How cornered was he to have blurted out "I don’t want to make it seem like I’m hiding something"?
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124 comments:
Head-scratching, eh? It's a perfectly comprehensible issue to anyone who's been through the first semester of Constitutional Law in law school. If anyone in that category is looking puzzled, I think they're engaging in mime. Don't be conned
It could be they’re just stupid…
We all have our areas of expertise and it is so obvious when they enter your territory to con us. Unfortunately Gell Mann Amnesia is a real thing, more prevalent than covid on some says it seems…
“Brushed aside by most other courts” is not true. It has to be raised in a case led by Smith, and this is the first active case opportunity. Smith’s DC case is on hold pending SC immunity case decision.
Shouldn’t there be proof of statements like these?
"'I don’t want to make it seem like I’m hiding something,' Pearce then said." Yea, well, he's a lib and he's working for the joey bidet administration. So the presumption that he's lying is a nearly certain bet. So nearly certain as is, will the sky be blue tomorrow.
prosecutors declined to divulge details and seemed caught off-guard by the inquiries
If they declined to divulge details they certainly knew the why the judge was inquiring. I can see why they would be caught off guard- being used to the judges working on their side and all…
…odds are they will stonewall and get away with it.
The prosecution's obvious dissembling in front of a federal judge is a further indication that the lawfare against President Trump is absolutely illegitimate.
Honestly, what floors me the most is that the supposedly elite prosecutor is a complete amateur.
Given all the resources of the Department of Just(Us), an AG even more of a 'wingman' than that POS Holder was, and all the Deep State support for persecuting Trump, they can't organize a strong case they largely engineered themselves. Says a lot about the incompetence of our supposedly elite class.
And Pearce doesn't "feel bad". He's running scared because he knows they aren't fooling anybody with this carp. If they were half as confident as they (and the usual suspects around here) project he'd be bulling over Judge Cannon's questions.
At one point, Smith deputy James Pearce said he was 'not authorized' to discuss the level of communication that occurred between the attorney general and the special counsel.
He could tell the judge, but then he’d have to kill the judge.
Oh, oh. Looks like another round of emails and phone texts deletions coming.
See J6 committee missing records. See Health Authorities missing Covid origins records.
No kidding. Pearce literally just stood up and pointed to the large, red elephant in the corner of the room when he blurted out, "I don’t want to make it seem like I’m hiding something."
As if he knows they're on the wrong side of the question of who they are reporting to, and he's trying to distance himself from the taint.
"I don’t want to make it seem like I’m hiding something"
Dem gaffe-speak.
Totally understandable, though. How can you do your lawfare without hiding something?
If he's too independent — that is, if he's not an "inferior" officer within the meaning of the Constitution — he needs to have been appointed by the President and confirmed by the Senate
Of course if he is an ‘inferior’ officer it connects his superiors to his actions. They should be paranoid about this…
The Judge was doing her job.
I had a case once where a DOJ tax attorney flew in from DC. We were in a meeting and he started screaming at me about my client and paying taxes. I was not impressed. DOJ did not send their best.
"I don’t want to make it seem like I’m hiding something" is the phrase used throughout history by people that are hiding something.
If the Judge doesn’t get answers from Smith and his team, she needs to get AG Garland in her Court and make him testify. And if he refuses to do so, hold him in contempt and send him to jail. That’s what happened to Peter Navarro and Steve Bannon.
“ has caused head-scratching in the legal community and drawn renewed criticism”
The journalists – the glorified English majors that wrote this piece - don’t want to make it seem like they’re hiding something with this language, either. But they are.
As often as Trump & co get laughed at for claiming to play 4D chess, this is really a great move. The prosecution are on the horns of a dilemma. They can admit they work for the AG and Prez like any line AUSAs, and stay in the case, but without their fig leaves. Or they can claim to be completely autonomous and get thrown off the case.
Of course it’s only a dilemma if they are embarrassed to have their fig leaves ripped off. How many voters minds would be changed by these guys admitting the prosecution is directed from the top? Not many. And if they can keep the case going they might actually lock up Trump. So I predict they will just open the kimono.
JSM
I will remind everyone that it was a female federal judge in Delaware who blew up that fake plea deal between the DOJ and Hunter’s lawyers.
No, he wouldn’t want to do that.
Rat bastard Garland and acne-scarred Jack “the Sultan of Subway” Smith need to come clean.
This is why they want this judge off the case. And why they leaked their own confidential communications to the NYT. So the judge figured if they are going through these lengths to get me off the case there must be some type of collusion, something beyond the particulars of the case itself. It also points to the possibility that the case itself is so weak that they need a Merchan to whip it, I mean to shepherd it to the resolution they want; a conviction.
The judge’s intense dive into an issue that has been brushed aside by most other courts has caused head-scratching in the legal community and drawn renewed criticism of her handling of the sensitive case.
The entire article is written in this vain. Pathetic.
Funny how when a judge involved in these corrupt cases (such as with the Hunter Biden plea deal) ask a few simple questions, things begin to smell fishy. And you don't even need to scratch that deep.
> Head-scratching, eh? It's a perfectly comprehensible issue to anyone who's been through the first semester of Constitutional Law in law school. If anyone in that category is looking puzzled, I think they're engaging in mime. Don't be conned.
I sense our host's cruel neutrality is dissipating rapidly. How egregious are the Democrat's sins to turn Althouse against them?
This all was known shortly after the MAL raid and attorneys raised the issue of Smith’s illegitimacy early in the process. The relief for Trump is always a very slow motion affair while the prosecution seems to act with lightning speed. I’m glad Althouse laid bare the bad faith acting on the part of the prosecution and further said a first year law student would understand. I look forward to the blithering idiots who will crawl in here to defend the out-of-control Jack Smith and his puppet master Garland.
I’ll go put my shitkicking boots on and come back to wade through this thread.
Without the fig leaf, the DoJ prosecutors will have to explain why Trump is being prosecuted for crimes they opted not to prosecute against Pence or Biden.
"I don’t want to make it seem like I’m hiding something."
"Rather, I want the Court to believe that the story I'm retailing is the actual story even though it's not the real story."
The real story being of course that the reptilian Garland wants status reports promptly and frequently which he turn passes on to the WH counsel's office.
Obama's AG Eric Holder started this sort of partisan contempt of Congress shenanigans. Holder was beholden to Obama in a fast and furious way. Nothing to see there. Move on.
I can picture Merrick Garland assembling his direct reports in some swanky conference room and asking them what the bloody Hell this Constitution thing is.
What happened to the story that the Nat Archives sent Trump the boxes containing the classified documents, likely indicating a set up, since they weren't ones his own people packed in 2021? Did I just imagine it, or was it bogus?
How heartwarming to know we have at least two judges who care about the actual rule of law, Cannon and Noreika.
How can Pearce's performance at the hearing be treated as a head scratching micro-event? The judge is focusing on the central issue, and the moral and intellectual elite suddenly feel these inexplicably annoying itches on their skulls. Scratch harder, you overpraised dufuses!
Remember when in the course of a case during Watergate (I forget the names) a judge found out one of the White House people was CIA?
If don’t ask questions, you don’t find out anything. What kind of judge would that make?
@Ralph L
No news reports will focus on the documents any more because the FBI staged the infamous 'classified coversheet' photo by putting documents under coversheets they brought to the raid, and our fabulously competent Feds (/sarc) then proceeded to jumble up the placeholders they inserted into one or more of the seized boxes so it's no longer possible to determine which "classified" document was where in the boxes.
This gets to the heart of the issue and the Biden Regime is screwed either way:
a. He is not an inferior officer following Regime orders persecuting a political opponent.
b. He is independent and not lawfully voted on by the senate.
He has been caught committing evidence tampering as well.
Every time this case is brought up we hear about Joe’s actual crimes he committed that were not covered by the presidential records act and the investigators didn’t charge him because he has dementia.
This case needs to continue all of the way through the election and through the inauguration. I don’t want trump letting bygones be bygones.
There needs to be heads on pikes.
It could also be that the White House wants a judge that will still go ahead with a trial, even if the Supremes find some presidential immunity favourable to Trump.
The byline comes from mehdi hasans producer who lapped everyone of these ridiculous headlines
So when the documents were photographed all over the floor, that picture was staged?
Am I alone in thinking that savvy Judge Cannon already knows the answers to the questions she's asked?
Reading this comment thread, there seems to be a consensus that saying “I don’t want to make it seem like I’m hiding something” is how a DC Swamp creature demonstrates that it is desperately trying to hide something.
Yes it was,
Every morning we wake up and find that the amount of cynicism we were forced yesterday to recalibrate in order to encompass just the corruption we could see has to be yet again recalibrated to begin to accommodate today’s news. Endless loop.
If it seemed like a manufactured outrage just wait
Quayle said...
“ has caused head-scratching in the legal community and drawn renewed criticism”
The journalists – the glorified English majors that wrote this piece - don’t want to make it seem like they’re hiding something with this language, either. But they are.
English as a major has more intellectual rigor than the Journalism major.
The only major with less rigor than journalism is education.
"Bottom-scratching" would be more likely.
The judge should just ask for him to submit the past year's billing records. That will show how often he is talking to Garland. The DOJ special counsel does maintain billing records, don't they?
During the OJ trial, the defense was at pains to keep the jury from getting the impression that we "shopped the samples around".
They were at pains to suppress that impression because they had, in fact, "shopped the samples around".
Journalism degree bu 2007
He just publishes press releases fron certain people does no investigating
I remember the good old days when Professor Althouse would do her best -- often very good -- to elevate discussions of legal issues.
I've been through law school. I've followed U.S. v Trump in the SDFL. I'm not taking the bait on Althouse's taunting. ("It's a perfectly comprehensible issue to anyone who's been through the first semester of Constitutional Law in law school. If anyone in that category is looking puzzled, I think they're engaging in mime. Don't be conned.")
Instead, I'll simply offer interested readers this tutorial on why Judge Cannon's consideration of this issue is legally dubious: the amici (yes it was totally weird to entertain amici, but she did, and so there were amici to back up the OSC in terms that were somewhat less restrained than the OSC/DoJ) elegantly make the case that Althouse somehow wanted to dismiss.
BRIEF BY CONSTITUTIONAL LAWYERS, FORMER GOVERNMENT OFFICIALS, AND STATE DEMOCRACY DEFENDERS ACTION AS AMICI CURIAE IN OPPOSITION TO DEFENDANT DONALD J. TRUMP'S MOTION TO DISMISS THE INDICTMENT BASED ON THE UNLAWFUL APPOINTMENT AND FUNDING OF SPECIAL COUNSEL JACK SMITH.
He is actually saying “I’m hiding something”.
He shouldn’t feel bad about it, that what lawyers do.
He just need weave a more creative story.
"CORPORATE DISCLOSURE STATEMENT
State Democracy Defenders Action is a nonprofit corporation headquartered in
Washington, D.C., and operating as a social welfare organization under Section 501(c)(4) of the
Internal Revenue Code. It has no parent corporation, has issued no stock, and as such, no publicly
held company owns 10 percent or more of its stock. "
This is what we call a "tell"
SDDA is funded by, staffed by and run by Democrat operatives. Another solely owned Soros organization.
>At one point, Smith deputy James Pearce said he was 'not authorized' to discuss the level of communication that occurred between the attorney general and the special counsel.<
Question to lawyers: Is that a sufficient answer to the judge? An acceptable reason to not answer her question? I thought judges were all-powerful in their courtrooms and it seems rather contempt-of-courty to me.
Steve Calebresi has been peddling this argumemt in the DC criminal case and gotten no takers at any level, district, circuit or supreme. But i suppose somebody was going to entertain it at some point, so might has well be quirky Cannon.
“If he's too independent — that is, if he's not an "inferior" officer within the meaning of the Constitution — he needs to have been appointed by the President and confirmed by the Senate”
“Of course if he is an ‘inferior’ officer it connects his superiors to his actions. They should be paranoid about this…”
There are actually 3-4 alternatives:
1. He could be a Principal Officer, nominated by then President and confirmed by the Senate (or in the case of a USA, appointed to a 120 day appointment by either the AG or the Judiciary in the case of an absence). They have fairly broad discretion.
2. He could be an Inferior Officer, who gets some discretion, like an AUSA. Statutes allow the Secretary of some Departments to create new offices. The DOJ isn’t one of them. This is probably where Garland/Smith/Bratt is trying to slot the investigation. There is some authorization for the AG to appoint a special counsel, but it’s pretty ambiguous, and in the past,except for Muller, they have all been USAs, and I expect that the assumption is that that was necessary for just this reason. Note, that the Mueller investigation e was the first big LawFare driven special counsel investigation, which suggests that using a non-USA as a special counsel is itself LawFare, exploiting a misinterpretation of a statute offensively.
3. He could be a direct employee of AG Garland. That’s the most likely outcome here. But that would put the two Smith prosecutions too close to the WH.
4. Recognition, in this case, could be made that it was initiated, orchestrated, brought, and managed by Deputy Special Counsel Jay Bratt, whose day job is being the chief of the DOJ’s Counterintelligence and Export Control Section of its National Security Division, which is headed by the AAG of National Security, a Senate confirmed position. So, Bratt could almost legitimately be running it from that position. The problem there is that this is the same DOJ organization, that worked closely with the FBI’s Counterintelligence Division (CD - where Peter Strzok etc worked) that gave us Midyear Exam (Clinton email whitewash), Crossfire Hurricane (RussiaGate, Steele Dossier, etc), § 1001 entrapment of Gen Flynn (illegally utilizing an unminimized FISA intercept), 4 fraudulent FISA warrants on Carter Page (presumably to electronically surveillance Trump and his inner circle, even after he was President), and the Mueller investigation. And, apparently, the FBI CD ran the MAL raid. Again, a bad look for the DOJ and FBI, making it obvious that the FL case is just a continuation of a now 8 year old attack on Trump by these two organizations. Won’t work though with the DC case.
5. The FL Trump prosecution is extra legal, thus ultra vires, and needs to be dismissed.
Yes, it’s a big can of worms, that Garland/Smith/Bratt wanted to just brush off and rush through. And they might have gotten away with it if Bratt and his minions hadn’t so consistently pissed off the judge with their bullying and arrogance.
Also from the Politico article: "Pearce emphasized that Smith was “in compliance” with longstanding Justice Department rules and regulations regarding his appointment and his handling of the case." Of course, that is irrelevant. The question is whether Smith was in compliance with the law, not departmental regulations. I have another question about Pearce saying "he was 'not authorized' to discuss the level of communication that occurred between the attorney general and the special counsel." If that's true, who is? Who does he need to seek permission from? Smith? Garland? Slow Joe himself? And not being 'authorized' to discuss the communications between Smith and the AG implies there are communications to discuss.
The slugs eating fungus are more transparently forthright than the bunch conspiring against Trump.
it is a simple question: are you in category A or are you not in category A?
Chuck and Readering don’t answer the question, but they tell you that top experts have looked at it and they don’t think there’s an issue. No, you’re right Chuck - there is no issue if you never answer the question. So why not just answer the question. Is Jack Smith in category A or not in category A?
Bruce Hayden says: "1. He could be a Principal Officer, nominated by then President and confirmed by the Senate (or in the case of a USA, appointed to a 120 day appointment by either the AG or the Judiciary in the case of an absence). They have fairly broad discretion.". I'm no lawyer but while I'm not sure what is meant by "an absence" I don't think this one is an actual alternative since, in fact, he was NOT nominated by the president nor was he confirmed by the Senate.
"This is what we call a "tell"
SDDA is funded by, staffed by and run by Democrat operatives. Another solely owned Soros organization."
No need to wonder who is paying Chuck anymore.
“What happened to the story that the Nat Archives sent Trump the boxes containing the classified documents, likely indicating a set up, since they weren't ones his own people packed in 2021? Did I just imagine it, or was it bogus?”
Remember, the National Archives hasn’t been operating on its own since almost the beginning. The FJB WH, very early on, ordered them to fully cooperate with the FBI (CD here). Which is to say that everything that they have done in this case was at the behest of the FBI/DOJ/Bratt, starting with their request for documents, through their (illegal) criminal referral, etc. much of this has come out as Judge Cannon has continued to unredact much of the discovery that the prosecution provided. The prosecution started with broad claims of national security to keep the discovery from the public, but the judge has whittled it down to physical danger to the DOJ and FBI people involved.
“Bruce Hayden says: "1. He could be a Principal Officer, nominated by then President and confirmed by the Senate (or in the case of a USA, appointed to a 120 day appointment by either the AG or the Judiciary in the case of an absence). They have fairly broad discretion.". I'm no lawyer but while I'm not sure what is meant by "an absence" I don't think this one is an actual alternative since, in fact, he was NOT nominated by the president nor was he confirmed by the Senate.”
Sorry. Should have said “vacancy”.
28 U.S. Code § 546 - Vacancies
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the earlier of—
(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
(2) the expiration of 120 days after appointment by the Attorney General under this section.
(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.
Here is the key part of the exchange:
Pearce literally said he "was not authorized" to discuss the levels of communication between Jack Smith's office and the AG. Who issues the authorization to do so- Smith or Garland? This should have been Cannon's next question (and perhaps it was and not reported)- "Who do you have to seek authorization from, Mr. Pearce?" The answer to that question would have answered the overall issue at question here- who is in control of the Smith's investigation.
Like Althouse, I think Pearce is trying to avoid having to answer that fundamental question because neither answer helps the Democrat Party in the election.
My opinion here is this- Smith was appointed to be a truly independent counsel and I do think that a communication wall has been put up between Smith's office and the rest of the DoJ- I think not doing so was too much of a political risk. However, Garland made a big mistake in choosing Smith- a choice made, I am dead certain, because they knew Smith was a poltical partisan they could count on to do everything possible to "get Trump"- and now they are stuck with that choice and now have to obscure that independence because it means they would have to start over from the beginning with properly chosen special counsel.
I'm not a lawyer but I do play one in internet comment sections and I think I'm solid on 1. not being an option since the special counsel to persecute Trump was newly created, so it's hard to see how they can claim it was 'vacant'. Plus, if they could make the argument that it was a vacant position, such an appointment can only last 120 days and Smith was appointed in November of 2022.
"Steve Calebresi has been peddling this argument in the DC criminal case and gotten no takers at any level, district, circuit or supreme. But i suppose somebody was going to entertain it at some point, so might has well be quirky Cannon."
LOL. Sure, Chutkan, the D.C. district, and Appeals Court are likely to not take the argument seriously, but Trump's legal team will file the appeal in those forums the moment they have to- and I promise you SCOTUS will take it seriously if they refuse to do so. I wrote it in another thread yesterday- even if SCOTUS allows the D.C. prosecution to go forward next week, the trial won't be held this year because Trump's legal team will just force the courts to deal with the other problems with the case- Smith's standing to prosecute being only one of them.
“3. He could be a direct employee of AG Garland. That’s the most likely outcome here. But that would put the two Smith prosecutions too close to the WH.”
The other problem with that alternative is that the two Smith investigations and prosecutions have apparently been funded off-budget through a special off-budget fund for Independent Counsel investigations. How independent is a direct report employee of the AG? What that means is that if Smith is a direct report to AG Garland, his funding is likely illegal. And, yes, that issue is also before the court.
This is part of why the questions that the Smith lawyer refused to answer are so important. If Smith is independent, how did he become so? And if he isn’t independent, then why isn’t the funding of the investigations a crime? These two things are routinely tied together by the defendants, but the funding is ignored by the prosecution (who are aiding and abetting Smith in spending money not authorized by Congress, if he isn’t independent).
can this judge require/compel Garland to show up in her court under contempt of court
“LOL. Sure, Chutkan, the D.C. district, and Appeals Court are likely to not take the argument seriously, but Trump's legal team will file the appeal in those forums the moment they have to- and I promise you SCOTUS will take it seriously if they refuse to do so. I wrote it in another thread yesterday- even if SCOTUS allows the D.C. prosecution to go forward next week, the trial won't be held this year because Trump's legal team will just force the courts to deal with the other problems with the case- Smith's standing to prosecute being only one of them.”
Judge Cannon does take the argument seriously, and I think partly because the prosecutors, from Smith and Bratt, on down, have pissed her off with their arrogance and refusal to obey her orders. So, my expectation right now is that she will, ultimately rule against Smith. That will force the DC judge to rule in their favor. Even if she denies the motion, she will, no doubt, allow it to go up to the 5th Circuit. After all, the legitimacy of the prosecution is integral for its existence. With that, the DC case is likely to go up to the DC Circuit, to give the other side. Then the Supreme Court, which just rejected the Bump Stock ban, 6-3, on statutory grounds, is likely to hear the case - again, about statutory overreach by a government agency. In any case, ain’t gonna happen before the election.
no hes a pirate, he was hired to get a scalp, see john edwards, as with bob mcdonnell, as with conrad black, nothing else matters,
"Of course it’s only a dilemma if they are embarrassed to have their fig leaves ripped off. How many voters minds would be changed by these guys admitting the prosecution is directed from the top? Not many. And if they can keep the case going they might actually lock up Trump. So I predict they will just open the kimono."
The problem with the open kimono tactic is that it is an admission that Garland and Biden's ass-puppeteer have lied about it from the beginning or would now be lying to save the case.
"Without the fig leaf, the DoJ prosecutors will have to explain why Trump is being prosecuted for crimes they opted not to prosecute against Pence or Biden."
Exactly right.
Yancey hits it:
They've been telling that lie for years. They need that fig leaf with normal voters.
Just like with the obvious vote fraud in Fulton Co in 2020, they can't drop the fig leaf, here. Because once you drop it one place, no one believes it in the other places.
So now we have the average voter believing (correctly) that the Garland / "Biden" DoJ was running the Bragg case against Trump, just like they were running their "independent prosecutor" Smith.
And what that leads to is "the Democrats really are a threat to democracy, aren't they".
It really was funny reading that Politico article. Who was that star where teenage girls were constantly whining "why won't they leave her alone?"
The Politico writer was constantly whining about Judge Cannon poking in to issues that all teh other "judges" have ignored."
It never seemed to occur to these geniuses that when you have a judge poking in to an obvious coverup ('I don’t want to make it seem like I’m hiding something'?! Well, then, stop hiding it, and just answer the judge's question. She's not asking for anything even remotely privileged), whining that "no one else has looked into this before!" just makes the other judges look bad.
"I don’t want to make it seem like I’m hiding something"
=================
also said by Emperor in new robe
'I don’t want to make it seem like I’m hiding something'?!
Well, then, stop hiding it, and just answer the judge's question. She's not asking for anything even remotely privileged. What she's asking for, in fact, pretty much should be a matter of public record:
Are you under the control of supervisors?
If no, were you properly appointed as a non-"inferior officer"?
If yes, how often do you communicate with those supervisors? How much control have they exerted?
Feeling the need to hide that is NOT a good look
'I don’t want to make it seem like I’m hiding something...'
A sputtering admission of doing precisely that, I would think. He logically hasn't confided everything to the judge, and it follows that when the questioning turns adversarial, anything that he has withheld is being 'hidden'.
The comical part is the shock, the absolute disoriented outrage upon realizing that this case is not proceeding smoothly along a well-paved, straight road to conviction. They really are surprised at having to work hard and think fast. The boyz in NYC have it easy. What a revoltin' development!
Yancey Ward commented on ""The federal judge overseeing Donald Trump’s classified documents case grilled special counsel Jack Smith’s prosecutors Friday on how closely Attorney General Merrick Garland oversees their work.""
9 mins ago
"Without the fig leaf, the DoJ prosecutors will have to explain why Trump is being prosecuted for crimes they opted not to prosecute against Pence or Biden."
Exactly right.
—————-
In addition to the similar crimes they opted not to prosecute Clinton and Obama for.
The ironic thing may turn out to be this: In their eagerness to engineer multiple convictions of Presidential candidate Trump in time for the election, it might turn out that judicial overreach and prosecutorial malfeasance is going to hog the camera and eat up the media, instead - just in time for election day. We've seen the result of Bragg's engineered '34 felony convictions' on Trump's fundraising. It was immediate and massive - and nationwide. What happens if similar reactions come in as the October surprise?
Narayanan commented on ""The federal judge overseeing Donald Trump’s classified documents case grilled special counsel Jack Smith’s prosecutors Friday on how closely Attorney General Merrick Garland oversees their work.""
14 mins ago
"I don’t want to make it seem like I’m hiding something"
=================
also said by Emperor in new robe
LOL
Chuck said...
I remember the good old days when Professor Althouse would do her best -- often very good -- to elevate discussions of legal issues.
Poor Chuck. The good law professor is tired of her profession being used corruptly by the Left, and Chuck just doesn't understand!
So Chuck gives us the amicus brief by the corrupt weasels supporting Smith,
I've decided it might be good of a laugh, so will Fisk it
State Democracy Defenders Action is a nonprofit corporation headquartered in Washington, D.C
So you know they're corrupt garbage
The Appointments Clause of the Constitution authorizes Congress to vest the power to appoint "inferior officers" in the Attorney General as the head ofthe Department ofJustice. U.S. Const. art. II,§ 2, cl. 2.
Yes, it has. But "inferior officers" are, by their very nature, supervised by another inferior officer, or else by a non-inferior officer.
So, who is supervising Smith?
In the course ofhis investigation and prosecution, he must "comply with the rules, regulations, procedures, practices and policies of the Department of Justice," including "required review and approval procedures by the designated Departmental component[s]," 28 C.F.R. § 600.7(a).
So then, you should have no problem answering the questions that Smith refused to answer.
Third, the Special Counsel is subject to oversight, control, and ultimately removal by the Attorney General. An inferior officer is "directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Edmund, 520 U.S. at 663 (emphasis added).
So, once again, we're all in agreement: The the Special Counsel is subject to oversight and control by the Attorney General
But Under persistent questioning from U.S. District Judge Aileen Cannon, the prosecutors declined to divulge details and seemed caught off-guard by the inquiries. At one point, Smith deputy James Pearce said he was 'not authorized' to discuss the level of communication that occurred between the attorney general and the special counsel. ' I don’t want to make it seem like I’m hiding something,' Pearce then said."
Apparently the prosecutors disagree with your Amicus, Chuck
the Hur report, contra Bob Bauer's attestations shows that Biden was directly involved in the transfer of documents from the Naval observatory to Virginia, of course we know Zwonitzer's statements about the classified materials, which he deleted, isn't that obstruction,
i've dialogued with mr cheney he's about below the yglesias line for obtuse, (back when he had his blog at the Atlantic)
An open-court hearing on why, exactly, Biden (and Pence!) were not prosecuted while Trump was, would be so delicious for me. It’s all there in Special Counsel Rob Hur’s report. And I’d love to see it get fought out in public. Remember Trump had wrongly taken thousands of Presidential records, including classified records, hundreds of which he returned, and for which he was NOT prosecuted. Trump was ONLY indicted for the class of documents that had been requested by the Archives, the FBI and the DoJ, and for which Trump refused return and in many cases personally obstructed the search(es). Rob Hur recognized that overwhelming distinction in his report.
Hell, I would love a weeklong hearing on that subject. With cameras in the courtroom. (But it’s federal court.)
Blogger Ice Nine said...
>At one point, Smith deputy James Pearce said he was 'not authorized' to discuss the level of communication that occurred between the attorney general and the special counsel.<
Question to lawyers: Is that a sufficient answer to the judge? An acceptable reason to not answer her question? I thought judges were all-powerful in their courtrooms and it seems rather contempt-of-courty to me.
It's an answer.
It's up to the judge to decide if it's a "sufficient" answer.
If not, we'll find out on Monday, when she orders the DoJ to answer the question, and gives them the option of:
1: Bringing in someone who IS authorized
2: Throwing the prosecutors in jail for contempt of court until they do answer.
It's Florida. She should have no difficultly finding deputies willing toe march those lawyers down to jail, right now
Neither Hillary nor Pence nor Biden had authorization to hold documents under the Presidential Records act, hence the name, I suppose Pence was granted that dispensation because of all the deep state operative like Olivia Toye, who proffered up Fauci and Birx and ran interference for them, no matter how much collateral damage they caused,
Chuck said...
An open-court hearing on why, exactly, Biden (and Pence!) were not prosecuted while Trump was, would be so delicious for me
Then you must be at least as stupid as we think. Because the only "justification" for not prosecuting Biden is that he's not mentally competent to stand trial.
Remember Trump had wrongly taken thousands of Presidential records, including classified records
No.
1: President have absolute power to declassify anything they want to. So unless you can prove that Trump didn't think to himself "I'm declassifying every single document I'm taking" (and yes, legally that's all it would take), as a legal matter you must accept that ALL the documents in Trump's possession were declassified.
2: You've yet to prove that ANY of the documents were "wrongly taken".
"Statements by bureaucrats" are not in fact proof of crime.
Given that the issue has been out there for some time, you’d think they’d have a response prepared. Not sure which way it cuts that they weren’t ready for it, but for sure not in favor of competence.
Judge Cannon does take the argument seriously, and I think partly because the prosecutors, from Smith and Bratt, on down, have pissed her off with their arrogance and refusal to obey her orders. So, my expectation right now is that she will, ultimately rule against Smith.
Don’t forget their first shady move was to try and dump the DC grand jury indictments without letting opposing counsel or the judge review them. Right from the beginning Smith and Bratt were clearly trying to shortcut their way to trial. Cannon reminded them that they needed to convene a Florida grand jury if they wanted use that evidence. You can’t just slip the sloppy DC work product into the Florida court.
"The Court finds that insufficient evidence has been presented to prove that Mr. Smith is an Inferior Officer of the Department of Justice, and the record is clear that he was not appointed by the President not confirmed by the Senate. Therefore his appointment was unlawful, and all evidence collected by his investigation is unlawfully-obtained evidence, and is suppressed per Federal Criminal Procedure XXX XX. As the prosecution is not lawful, the case is dismissed and defendant is awarded all costs of defense. All funds expended paid to or expended by Mr Smith and his subordinates during the operation of the so-called Special Counsel's office above their civil-service salaries are forfeit and required to be returned to the Treasury.
thats why the appeals court, had reversed the special master, so you couldn't look at the clear fraud smith had presented,
The judge is taking the argument seriously because it is a serious legal argument. None of this is a matter of personal pique, animus or the like. And the lawyers advancing the argument, both before her and in amicus briefs in the Supreme Court and elsewhere, are equally serious and thoughtful. Anyone paying the slightest attention knows that these structural issues are very much on the Supreme Court's radar -- whether various agencies are properly structures, whether ALJs were properly appointed and can properly adjudicate certain issues, etc. The superior/inferior officer issue has lots of moving parts, and all of them are up for grabs in this case.
What's truly amazing is that Trump is not only remaking the poltical map of America as well as the demographics of the two main parties, but he is also leaving his mark in so many ways on the law as well as the judicial branch. He is a truly historical figure despite himself.
Most transparent administration EVAAAAAAH.
Greg I am looking mostly, although not exclusively, at pp. 10-13 of Rob Hur’s report. Which pages are you looking at?
https://www.justice.gov/storage/report-from-special-counsel-robert-k-hur-february-2024.pdf
It needs to be dismissed with prejudice.
I went back and read pages 10-13 of the Hur report. I found it interesting that Biden's reported defense revolved around 'but other presidents have done the same thing" Apparently he not only forgot what years he served as VP, but even that he was VP and not the President. Part of Hur's justification for letting slow Joe skate was that he thought Biden's lawyers could sway a jury by arguing that had a good faith belief that he had a right to keep his 'personal' documents. ("Mr. Eiden explained that, despite his staffs views to the contrary, he did not think he was required to turn in his notecards to the National Archives-where they were stored in a SCIF-and he had not wanted to do so. At trial, he would argue plausibly that he thought the same about his notebooks" Hur report). If that mitigates not prosecuting Biden, it seems to me that same logic would apply to the Trump persecution.
Note that Chuck says he's "been through" law school, w/o saying he graduated or passed a bar exam.
It's a "tell."
effinayright said...
Note that Chuck says he's "been through" law school, w/o saying he graduated or passed a bar exam.
...
I deliberately and specifically chose the phrase "been through," because that was Althouse's phrase in her blog-post: "Head-scratching, eh? It's a perfectly comprehensible issue to anyone who's been through the first semester of Constitutional Law in law school..."
So now; yes, and yes.
tim maguire said...
Given that the issue has been out there for some time, you’d think they’d have a response prepared. Not sure which way it cuts that they weren’t ready for it, but for sure not in favor of competence.
You're assuming that it's possible to give a good answer.
1: "No one at the DoJ is telling us to do, or not do, anything". Ok, you're not a "inferior officer", we're confirmed by the Senate, your prosecution is tossed
2: "Garland has been supervising us". Headline next day "Independent Counsel going after Trump isn't actually independent!"
Heads Trump wins, Tails they lose.
It's their own fault, but that's the situation they're in
The comments here include some clearly well-informed posts from Bruce Hayden.
That is in sharp contrast to the reporting from Politico's "Senior Legal Affairs Reporter" Josh Gerstein, who seems to think that the DOJ attorney's did not read the briefing on this issue and therefore were caught off guard about the questions from Judge Cannon.
I did not think that Gerstein is as stupid as he lets on, regarding the supposed ill-preparedness of DOJ, or suggestions that this is not a legitimate issue.
For instance, Gerstein's own article from 5am on the same day 96/21/24) as the article that Ann addresses foreshadows the issues and questions regarding discretion and control
https://www.politico.com/news/2024/06/21/trump-classified-documents-jack-smith-constitutional-00164368
BUT, then again Gerstein did choose to apply the term "superior officer" (used in quotes by Gerstein) when the correct term in this context is "principal officer."
All in all, Gerstein's reporting here indicates that he does not know what he is talking about and should forfeit the title "Senior Legal Affairs Reporter"!
There have been a fair number of recent Appointment clause cases, because the requirements for proper appointment and political accountability to the citizens (through elected officials) is a legitimate issue.
Chuck said...
Greg I am looking mostly, although not exclusively, at pp. 10-13 of Rob Hur’s report. Which pages are you looking at?
Page 11: Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.
The documents weren't classified, because Trump declassified them before he left office.
It does not matter if they have "classified markings"
It does not matter if the bureaucrats didn't want them declassified
ALL that matters is "did Trump declassify them before he left office?"
Since a President literally can declassify a box full of Top Secret documents simply by thinking to himself "I want all those documents declassified", you simply have to accept the former President's word for it if he says they're not classified, or that he has no classified documents in his possession, etc.
Hur knows this. For him to ignore it, is to show that he's a political hack
If I were talking to you, and blurted out "I'm not stealing you money", you might become suspicious.
Given the reality that is being highlighted here:
- Did Garland really think they would get away with this - that there aren’t sufficient legal minds on the right to shine the light on this illegal appointment?
- Despite being illegal, was he too confident that no judge would look into the matter?
- Where would we be if this illegal appointment was challenged at the time of the indictment, or earlier? Is it better to challenge now, despite all the time and money sunk, since its closer to election, and there’s little time for Biden-Garland to regroup?
I think the crucial issue is which party has the burden of proof on this issue. If it’s on the DOJ, Pearce’s statement that he’s unauthorized to say should give the defense a win. It’ll be interesting to see if Justice Thomas addresses this issue in a concurrence or dissenting opinion in the presidential immunity case decision expected next week, as he raised this issue during oral argument.
Part of Hur's justification for letting slow Joe skate was that he thought Biden's lawyers could sway a jury by arguing that had a good faith belief that he had a right to keep his 'personal' documents.
Don’t forget there’s audio recording of him telling his biographer that he “found the Top Secret documents I told you about” which was one of recordings the publisher tried to hide from the Special Counsel. He knew he had them. He knew they were marked SCI and he knew they weren’t his “personal records.” Hur’s job was to write a credible explanation for NOT prosecuting Joe. But Biden was such an arrogant ingrate after the fact that he accused Hur of bringing up Beau, which Hur then proved was a lie by handling the transcript over to Congress.
Note that Chuck says he's "been through" law school
=================
easy peasy walk across campus - but not as good as Ellie Woods who is Legally Blonde and allowed to wear pink.
What's truly amazing is that Trump is not only remaking the poltical map of America as well as the demographics of the two main parties, but he is also leaving his mark in so many ways on the law as well as the judicial branch. He is a truly historical figure despite himself.
I just watched the final episode of the HBO/BBC "Rome" miniseries, which was well done apart from some scenery-chewing acting and occasional liberties taken with the historical record. Within the past couple of years I also have listened to some 180 episodes of the "History of Rome" podcast from Mike Duncan, a real tour de force of popular history that has been my companion on many long drives. And I am deep into the Landmark edition of the works of Julius Caesar, the new definitive English language translation of his memoirs with many useful maps and annotations. I already had my Greek phase with Thucydides and the Landmark edition of Herodotus, as well as a minor obsession with Egyptian antiquity a couple of decades ago, and I will soon delve into the Byzantine Empire and the many splendid Persian empires (Medean, Achaemenid, Seleucid, Parthian, Sassanid, Umayyad, Abbasid, Seljuk, Ilkhanate, Safavid, and a number of other rump states and petty kingdoms in between.)
All this is to say my mind has been on history quite a lot lately. It's often the case that those living in historic times and even making that history themselves are not really aware of just how long the memory of their times will persist.
I think it is safe to say that since the American Revolution we have been living in a time and place that, thousands of years from now, will loom as large in historic memory as the days of the Roman Republic and the rise of the Empire. Donald Trump will be a colorful and well-remembered figure in that tale. Not of the stature of Julius Caesar, Virgil, Augustus, Cicero, and Constantine, but perhaps on the scale of Marius and Sulla. Perhaps even greater, if things really go south soon, and we are forced to fight another revolution under his banner to deliver us from the oppression of the Deep State and its corrupt DC Uniparty cronies.
Just imagine a three or four year series on the Rise and Fall of America, filmed on an orbiting Ringworld or Dyson sphere ten thousand years from now, with the Trumpist Front emerging victorious over the Soros Satrapy....
Read not, believe not, respond not to ANYTHING written by our Cassandra whose name also begins with a capital "C". There's a reason that humanity should have left Pandora's Box closed. For myself, I imagine that I'm on an airplane and the person next to me cuts a huge cheese. Though my first thought is to say something I choose to desist, letting both the smell and my reaction to it eventually waft away. The essence of Zen!!
“The Appointments Clause of the Constitution authorizes Congress to vest the power to appoint "inferior officers" in the Attorney General as the head of the Department ofJustice. U.S. Const. art. II,§ 2, cl. 2.”
Yes, but that is (misleadingly) incomplete. Art. II § 2 Cl 2 states (in relevant part) states that:
[The President][…] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, 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.
Key here is that “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.” Congress has authorized the Heads of some Departments the power to appoint as many Inferior Officers as they see fit. The DOJ is not one of them. The DOJ has been authorized by Congress an AG (Head of Department), a deputy (DAG), an Assistant AG, a half dozen Associate AGs and 92/93 USAs (one per district, but two districts share one). In other words, for someone to be an Officer of the US, their Office must be either: 1) specified in the Constitution; 2) specified by statute; or 3) created by the President, the Judiciary, or the Head of a Department, if authorized by statute. None of these appear applicable to Smith.
Bruce Hayden goes to town!
I’ve told the Omaha Public Power District Board that their net zero policy is ultra vires. They ignore me.
Narayanan said...
Note that Chuck says he's "been through" law school
=================
easy peasy walk across campus - but not as good as Ellie Woods who is Legally Blonde and allowed to wear pink.
*******
Note further that Chuck says "yes" and "yes".....without evidence.
Patentlee said...
I think the crucial issue is which party has the burden of proof on this issue.
Teh gov't always has to prove they're allowed to do what they're doing
Normally, it's an easy lift. This time, not so much
The rule of Lemnity said...
So when the documents were photographed all over the floor, that picture was staged?
1) Yes
2) Meanwhile I’m wondering whether there were actual documents behind those cover sheets in the photo, and, if so, did the cover sheet actually match the classification marked on the cover sheet, as is legally required? For the record a government cover sheet has wording on it that states that the cover sheet itself is unclassified if separated from a classified document. If the FBI agents merely tossed a bunch of loose cover sheets around the room then not only was the scene staged but the takeaway we were supposed come away with is 100% wrong.
The way to fix their wagon would be for Judge Cannon to enter a finding of fact that Smith had no supervision, was acting independently, and thus his actions were ultra vires. The purpose of the hearing was, among other things, to determine the level of supervision by AG Garland over Smith. They stonewalled. So a negative inference is justified.
‘I deliberately and specifically chose the phrase "been through," because that was Althouse's phrase in her blog-post: "Head-scratching, eh? It's a perfectly comprehensible issue to anyone who's been through the first semester of Constitutional Law in law school..."
So now; yes, and yes.’
Fiendishly too clever by half. LMAO
Not only was the photo staged they admitted bringing those cover sheets to do their BS photos. Then had to admit in their rush to make Trump appear felonious they mixed up the order and now no one knows which documents were stored where. They dicked their own case, repeatedly stepping on their own crank. This isn’t the only one going sideways if Smith is found illegitimate.
We told our lurking alleged lawyer this would happen but he is slow to understand.
@Big Mike
Per this post by Julie Kelly which I refered to before, the agents apparently attached cover sheets they brought with them to documents they considered to be "classified" when they were searching the boxes found at Mar-a-lago. The intent appears to have been to replace the "classified" documents in the boxes with cover sheets, place the "classified" documents in secure storage, and then cross-reference them. To your questions, the post indicates that the security clearances of the agents conducting the search and their ability to discern appropriate classification levels has not been revealed but the DOJ has told Judge Cannon that the seized documents were undergoing a further review for classification. The infamous photograph with no other context could certainly give the impression that the documents had been found labeled and collected together, rather than unlabeled and intermingled with hundreds of other documents as the discussion of the mishandling reveals, but was not faked by merely photographing cover sheets artfully arranged.
In the DC criminal case, Ed Meese, Steve Calabresi and others submitted an amicus brief on the stay application/writ petition, raising the issue now before Judge Cannon. In granting the petition, the Court limited the question presented, and excluded this issue. But they then essentially resubmitted their amicus brief arguing, "a preliminary question that is
fairly encompassed within the question as framed by the Court: Whether Jack Smith has lawful authority to undertake the 'criminal prosecution' referenced in the Question Presented." I can't remember if anyone brought it up at oral argument.
They also filed an amicus before Judge Cannon, which she accepted, and go the ball rolling, which is very unusual at the district court level. That's why it seems premature to see it as a serious question before Judge Cannon, when no one else in the DC litigation seems to have been treating it very seriously.
Trump appointee judge dismisses case against Trump.
That won't cause the general public to think it's a load of BS.
Cannon dragging her feet was the best thing to happen to Trump, I doubt dismissal will work as well to low information voters ... but sure, go ahead and roll those dice.
What a great thread.
LOL spinning due diligence as “Cannon dragging her feet”
Need some salve for that butthurt, Mark?
Speaking of rolling the dice, how'd that "conviction" by a Democrat Hack-in-Black and a hand-picked gang of kool-aid drinkers work out for ya?
If Cannon finds Smith to be unlawfully appointed and dismisses or otherwise sidelines the case, it will have repercussions on the DC case he’s running, as well. Chutkan won’t be able to ignore the scarlet “BS” on Smith’s hide.
In 2021, the Supreme Court addressed the qualifications of the Patent Office’s ALJ’s sitting on the Patent Trial and Appeal Board (“PTAB”) under the Appointments Clause in U.S. v. Arthrex, and found the oversight of the ALJs to be lacking. Prior to that case, repeated challenges to the constitutionality of the PTAB under the Appointments Clause had been summarily dismissed. Judge Cannon should not be criticized for carefully analyzing this issue just because other courts have not.
The facts that Garland wasn't impeached for "The Raid" and that the Biden Administration hasn't been universally condemned and forced by the strength of universal condemnation to dismiss the charges and apologize, told me a long time ago that our political and judicial systems are fully corrupt, overwhelmingly biased, and not to be trusted.
Cannon may ultimately dismiss the case, but the damage has been done.
The "authorities" no longer have any credibility.
“They also filed an amicus before Judge Cannon, which she accepted, and go the ball rolling, which is very unusual at the district court level. That's why it seems premature to see it as a serious question before Judge Cannon, when no one else in the DC litigation seems to have been treating it very seriously.”
Those DC judges are the same ones who are sending J6 protesters to prison by 5he truckload, for what are almost all made up LawFare charges. They routinely allow the DC prosecutors to deprive the defendants there of various Cnstitutional rights, including Speedy Trial and Brady Rule Disclosures. The appointment of Smith as a supposedly independent counsel, with no apparent statutory basis is just run of the mill LawFare, little different from what the judges in the DC District have been condoning since at least 2016, when it was first used against Trump and his people. So, no, I didn’t expect this type of challenge to make headway in DC, until, as I suggested above, Cannon sides with Trump. I think that they will have to then address (and likely reject) the theory, so that the Supreme Court can hear both sides. Yes, it is more complicated than that (for example the 5th Circuit could reverse Cannon), but I think that Smith stonewalling Cannon here put them in a bad procedural position, and DC decisions could help them out of it. So, for the present, I expect the DC judge to just wait to see what Cannon does. She doesn’t appear to like the prosecution at all, and esp their arrogance and slimy tricks, but also knows that they desperately want to get her replaced by a more compliant judge on the case. We shall see.
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