In a stunning ruling, the judge, Aileen M. Cannon, found that because Mr. Smith had not been named to the post of special counsel by the president or confirmed by the Senate, his appointment was in violation of the appointments clause of the Constitution....
This will be appealed, but in the end Trump will win. In any event, he has won more time.
ADDED: Here's the opinion. Excerpt:
The bottom line is this : The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel's position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.
Posts
161 comments:
Judges can read the room also.
After the Baldwin trial ending last week, anything is now possible.
"In a stunning ruling...?" Why is it stunning? Is the ruling wrong? I think not.
NYTs stunned.
Biden should just pardon Trump. It's over.
Now the pressure is on that hack Chutkin. Why shouldn't she dismiss the DC case?
Almost 100 pages, in the works for a while. This case was not going to trial before the election anyway. Now off the front pages.
Just checking - would chortling be ungracious?
Outstanding news! Jack Smith, the Sultan of Subway Sammich, can fuck right off.
I think it took a lot of courage to make this decision. But it is the right decision. She is going to get a lot of grief from the left over this. I don't expect to see the same decision coming from Judge Chutkan in DC.
Free advice to Democrats: denounce all lawfare warfare.
I feel for her. She will have to go into hiding. I bet the riots will be lit tonight.
It was the meese brief who was the target of two special counsels when he was atty general
Oof. A glance at the Drudge headlines sounds like a kid who just had his marbles taken away from him and knows there's nothing he can do about it.
This will, of course, be the sound coming from the left all day and well into the week. The 'let's be nice' feeling is about to evaporate.
Happy days are here again. The blessings of Abraham are pouring out on the man who began The Abraham Accords after he moved our Embassy to the capitol of Israel and declared the Golan Heights part of Israel. At least that is what the Israelis believe.
Chutkin only protects the guilty chadoury fusion gps some others that come to mind
"Free advice to Democrats: denounce all lawfare warfare."
And run on policy? That's a winner, for sure. They'll still have voter fraud, of course, so there's a chance for them yet.
The incomparable Julie Kelly wrote, "A reminder that Jack Smith is a huge loser and now a federal judge has determined his appointment was illegal and that his arguments defending his appointment sucked." This closes two pending matters then. Even if the DC judge tries to keep the Jack Smith case going in her court, Trump will appeal to SCOTUS. If that case doesn't die immediately it will at least be delayed terminally.
So I'm sure our resident bully will be along to whine and stamp his feet, but here's the periodic reminder that many of us non-lawyers here hanging out reading Althouse confidently predicted this outcome, because it was obvious. The Lincoln Pedos and the Bulwark buttheads were wrong, and the former prosecutors who hang out on Fox News were right.
Trump Lives! Smith is a fraud!
On a basic level, any case thrown out against Trump is good for Trump. Not sure if this was the best for Trump. As noted, Jack Smith and Merrick Garland are certain to appeal Judge Cannon's ruling, if for no other reason than they would obviously disagree with her. If Cannon's ruling were to stand unchallenged, then all the other cases Jack Smith is attempting to bring fail. By ruling, Smith is now out from under Judge Cannon. I think Cannon is smart to get rid of this case from her docket, but I don't think anyone should be celebrating that this is over.
Wait a MINUTE!!
i have PLEDGED to "vote for the convicted felon" in 2024!!
Am i going to have to vote for Hunter?
Just an absolute preference cascade of bad news for the Rats.
I expect that civility bullshit tag will see regular use in the coming days.
On the other hand, would any reasonable prosecutor continue to bring charges against a popular Presidential candidate that is now well ahead in the polls and just survived an assassination attempt?
Just an absolute preference cascade of bad news for the Rats. I suppose Cannon couldn't drag it out any further, and the Democrats won't be able to even start the appeals process in Florida- particularly if the verdict stands on summary.
It was the meese brief who was the target of two special counsels when he was atty general
Yep and let us not forget that after the Special Counsel statute burned Clinton, democrats finally saw the light and when the statute expired there was no real movement to re-up it. These challenges probably should have been made when Mueller was illegally appointed but there was so much confusion and chaos caused by Uniparty opposition to Trump, that no one from the establishment like Meese dared give him this advice.
Can we take a breath before we eeyore we know the 11th circus removed the soecial master we know other judges pressured her to drop the case
In the end Trump will win? Does this mean you agree the special counsel position is unconstitutional?
I believe that the most pertinent question today is: Do Clarence Thomas and Aileen Cannon have bodyguards?
“In any event, he has won more time.”
In more ways than one.
There were several other reasons to dismiss. This particular one had the virtue of slapping down Jack Smith, whom she caught mishandling evidence and deliberately trying to deceive the court.
There were other problems with that case Leland, not the least of which that every president has enjoyed absolute authority over what documents he can and cannot possess, even after leaving office. The National Archivist is a librarian, not a cop. The statute is a civil statute, not a criminal one. Etcetera etcetera.
“You’re going to get tired of winning. You’re going to say, ‘Please Mr. President, I have a headache. Please, don’t win so much. This is getting terrible.’ And I’m going to say, ‘No, we have to make America great again.’ You’re gonna say, ‘Please.’ I said, ‘Nope, nope. We’re gonna keep winning.’”
The only “stunning” part is that these fascist idiots who just failed to assassinate Trump do no understand the position they are in right now.
The stealing documents case was fundamentally unconstitutional in several ways.
Everyone knows they are illegitimate and now they know the regime and its supporters are murderous.
Leland said: "On the other hand, would any reasonable prosecutor continue to bring charges against a popular Presidential candidate that is now well ahead in the polls and just survived an assassination attempt?"
Cue Alvin Bragg.
All Garland had to do was admit that Smith was managed by Garland himself. This is what happens when you try to have your cake and eat it too.
More Julie Kelly: "During the last hearing, Cannon appeared very concerned over the legality of Smith claiming the special counsel has unlimited and indefinite funding. She asked for other examples of similar offices/departments and DOJ didn’t have a good answer."
Every rule is broken to get Trump.
Still waiting for Garland to release the Biden docs interview recordings. What does he need to hide?
The Biden Administration is so incompetent. If they're not over the hill, they're out to lunch.
Why does something obvious to a lay person take so fucking long?
Millions have been spent on both sides.
The government is not here to help you...
The trend is our friend.
Take nothing for granted.
gilbar said...
“Wait a MINUTE!!
i have PLEDGED to "vote for the convicted felon" in 2024!!
Am i going to have to vote for Hunter?”
Jello Biafra from the Dead Kennedys is an option. He ran for president in 2000 - about the same time he was convicted. I think it was a civil suit and not a felony rap, though.
Dave Begley said:
"Biden should just pardon Trump. It's over."
Legally, that makes sense; you're a lawyer and I'm not.
Question:
Is it up to the pardoned person to accept a pardon? If T. accepts a pardon, does that imply that he accepts that he is guilty of what he was convicted of?
Question if it would be politically sensible for T. to accept a pardon if it is offered.
gilbar said...
Wait a MINUTE!!
i have PLEDGED to "vote for the convicted felon" in 2024!!
Am i going to have to vote for Hunter?
7/15/24, 9:38 AM
That cracked me up!! Looks like I have to join you!!
Ice Nine: "I believe that the most pertinent question today is: Do Clarence Thomas and Aileen Cannon have bodyguards?"
I am certain that by now the DOJ has dispatched several unarmed but quite lyrical oompa loompas to provide security for the conservative jurists on the Supreme Court and their families.
Looks like LLR-democratical Chuck slimed his way out of here just in the nick of time.
Here's wishing him all the psychological counseling he needs to overcome the already here deluge of bad news.
Relax, Gilbar.
Every American commits three felonies a day, including Trump. This is common knowledge.
Conviction is a mere technicality. And it can be hard. You certainly don't want to burden Important Prosecutors with having to, for instance, actually specify a crime? That sounds a lot like real work.
If Merrick Garland was Supreme Court material, why couldn't he figure this out?
Chutkan has all the now immune factors in the DC case, too. She should piggy back on this Cannon ruling and relieve us all of this charade.
@Leland…. It’s 99.9% over. Because Trump lives and Alina Habba will fight, fight, fight for him as long as she lives. The next assassination order coming out of the White House will have include the slaughter both targets and many, many more.
The Dems are now facing U S Trump (a/k/a Unconditional Surrender Trump.)
"I feel for her. She will have to go into hiding. I bet the riots will be lit tonight."
i'm thinking that this soon after the assassination attempt the powers that orchestrate the riots (and make no mistake, they are orchestrated) will back off.
More legit than basing it in the “Elderly Man with a Poor Memory” clause of the Constitution.
"Stunning", I don't think so. Black letter law, it seems to me.
Here's a question for our lawyers-- doesn't this ruling mean Smith is a private citizen who has no more power or justification to prosecute Trump than I do? If so, can Trump sue him for conspiracy to violate his civil rights and get around the (evil and unconstitutional) shield of qualified immunity?
I think he should do so regardless, and try to bankrupt the little cockroach, even if he wins in the end.
"Looks like LLR-democratical Chuck slimed his way out of here just in the nick of time."
That's unfortunate. I looked to him for penetrating legal guidance. After all, IANAL.
Bulletin: "Acme Lawfare Warfare Kit" misfires. Again.
Beep-beep!
Blogger Yancey Ward said..."All Garland had to do was admit that Smith was managed by Garland himself."
Interesting.
Blogger Mike (MJB Wolf) said...
There were other problems with that case Leland, not the least of which that every president has enjoyed absolute authority over what documents he can and cannot possess, even after leaving office.
That's exactly what I'm thinking. I rather Judge Cannon dismissed for one of those reasons. Maybe she did too and the focus is on her part of the ruling that Smith wasn't duly appointed. But I think a ruling that SCOTUS decision on immunity covers possessing his official documents afterwards would be hard for the 11th Circuit to overturn vs the suggestion that Smith was improperly appointed, which I agree that he was. It is a slap at Smith and Garland, but it is one they'll easily fight (fight, not necessarily win).
Free advice to Democrats: denounce all lawfare warfare.
I'm going to bet that you will be all for "lawfare warfare" if Trump wins.
Humperdink said...
Judges can read the room also.
More importantly, in this case she's capable of reading the law and reading the US Constitution. This was legally the correct decision.
As Yancey Ward pointed out, all the prosecution had to do was state "Jack Smith is an inferior officer, a subordinate prosecutor being supervised by ".
But they had a story line to push, and the story line was more important than following the law.
So now, because the DoJ isn't above the law, they lost
Meade said...
"Free advice to Democrats: denounce all lawfare warfare."
Don't hold your breath. More likely, they'll put a lid on it and slink away while planning a different tactic.
The appeal to the 11th Circuit Court where Justice Clarence Thomas presides? Badda-boom, badda- bing. It's a done deal.
West TX Intermediate Crude said...
Question:
Is it up to the pardoned person to accept a pardon?
Yes. Every US citizen has the legal right to refuse a pardon.
And Presidential Pardons don't affect State criminal convictions. So IMO there's no reason for Trump to accept one from Biden
Field Marshall Feeder assumes that Trump will imitate Garland after being elected. If only we had a previous Trump administration to compare. Oh, wait.
MadTownGuy said...
Meade said...
"Free advice to Democrats: denounce all lawfare warfare."
Don't hold your breath.
The reason for them to do that is to protect themselves from being prosecuted by the Trump Admin. By trying to eliminate the precedents that Trump would use.
But we're not going to hold our breath, because the Left really are too stupid to grasp teh concept.
well the inferior officer is a priori, to the other charges, which really came from jay bratt and his national security division,
Actually, Yancy, we're both wrong:
For purposes of this Order, the Court accepts the Special Counsel's contested view that he qualifies as an “inferior Officer,” not a “principal” one, although theCourt expresses reservations about that proposition and addresses those arguments below.
...
is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment-28 U.S.C. §§ 509, 510, 515, 533— gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel's strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise.
So she's just saying straight out: You can't appoint a Special Counsel who hasn't been through the Senate
weird that this just sat around for a year before being resolved; this seems like the sort of thing a judge would want to deal with up front
"Free advice to Democrats: denounce all lawfare warfare."
Field Marshall Freder; "I'm going to bet that you will be all for "lawfare warfare" if Trump wins."
Shorter Freder: Althouse blog conservatives guilty of Future Hypothetical Acts That New Soviet Democraticals Have Already Pulled
That was one of the New Soviet Democraticals rhetorical ploys all last weekend.
No way the Eleventh Circuit will reverse this ruling.
Thinking freely about the last 60 years the Supremes were the tool used over ruling the Constitution on all issues the liberals wanted new law on but refused to risk voting on in Congress, but since Trump got his 3 new on the Court they have rediscovered the Constitution and are honoring its use of separation of powers,
well you know how it goes they memorized the scalia dissent in Olwon, like it was a catechism,
andrew weissman's sad hang dog like he was daffy duck was priceless,
Blogger Just an old country lawyer said...
No way the Eleventh Circuit will reverse this ruling.
Finally read the opinion and I concur.
"Lawless warfare" isn't necessary when the law is on your side.
It’s all 100% masks off at this point. Is it too late for Hunter Biden to try to get his case reassigned to Aileen Canon?
I'm going to bet that you will be all for "lawfare warfare" if Trump wins.
You are correct. I want him to marshal every resource he commands as President to cause permanent and devastating harm to the Democrat Party. Hit the leftist scum ten times harder than they hit him. That is the only way they will get the message to stop it.
He can begin with putting every Antifa/BLM scumbag who had charges dropped by the Garland Justice Department right back at the head of the line for prosecution, and appointing an independent investigative body to do an audit of mail-in voting in proctological detail, with draconian punishment for those found to be fixing the vote. Subpoena every piece of paper Marc Elias ever saw in the past twenty years.
If Special Councils are now unconstitutional, then Hunter Biden’s lawyers are probably busy drawing up papers. The 11th Circuit will most likely overturn this ruling by Cannon. Special Councils are not now and have not been in the past unconstitutional, what nonsense.
Inga said...
If Special Councils are now unconstitutional,
Hunter Biden was prosecuted by Delaware U.S. Attorney David Weiss, not a Special Counsel.
But please do keep posting comments that prove you don't have a clue.
And if the case ends up back in the SC, remember, there are 8 other Justices besides the corrupt Clarence Thomas. Special Councils have been used for over 100 years.
“Attorney General Merrick Garland announced the appointment of David Weiss, U.S. Attorney for the District of Delaware, as the special counsel on August 11, 2023, three days after Weiss requested such authority. Since 2018, Weiss had been investigating Hunter Biden as U.S. attorney.”
Christopher, you’re an idiot.
It doesn't matter what Merrick Garland called him in a press release, David Weiss is and was the duly nominated and confirmed AUSA for Delaware. Jack Smith is not an AUSA.
For those that think the 11th Circuit will side with Cannon in this dismissal, have you forgotten this ruling?
The 11th Circuit:
“On Dec. 1, in a unanimous per curiam decision, the U.S. Court of Appeals for the 11th Circuit ruled to reverse an order issued by U.S. District Judge Aileen Cannon to appoint a special master to oversee the review of classified documents seized from former President Donald Trump’s Mar-a-lago residence on Aug. 8.
The 11th Circuit found that Cannon “improperly exercised equitable jurisdiction” in hearing the case and that the entire proceeding should be dismissed. Notably, the court also found that regardless of the status of a document in question (personal or presidential), the government maintains the authority to seize it under a warrant supported by probable cause.
The panel wrote, “The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”
Institutions work until they don’t. It’s banal but true. Courts as institutions worked when Trump tried to steal the election, but the Federalist Society has been chipping away at them for decades, and I think it is very rational to doubt they will work any more to restrain an executive.
The only thing that surprises me about what Judge Cannon did is that she did it this soon, on grounds this will likely to be overturned. She could have waited until after the election, or after a jury is empaneled. It smacks a bit of mask-off triumphalism, a sort of ‘we are winning —Trump 4ever’ which may be an accurate perception of the drift of things, or not.
Freder Frederson said...
Free advice to Democrats: denounce all lawfare warfare.
I'm going to bet that you will be all for "lawfare warfare" if Trump wins.
We believe people who break laws should be prosecuted.
We don’t believe in novel legal theories or shooting our political opponents like you do.
You have been playing stupid games. We are done with stupid games. Prepare for the political wilderness. You are an evil person and a critical mass of people in this country are no longer going to allow you to destroy our country.
Inga said...
If Special Councils are now unconstitutional, then Hunter Biden’s lawyers are probably busy drawing up papers. The 11th Circuit will most likely overturn this ruling by Cannon. Special Councils are not now and have not been in the past unconstitutional, what nonsense.
Dishonest and evil as usual.
There is a clear process to create a special council and that involves senate approval. It is in black and white.
The regime did not follow this process. They acted illegally. Period.
You are dishonest murderous scum.
Freder Frederson said...
Free advice to Democrats: denounce all lawfare warfare.
"I'm going to bet that you will be all for "lawfare warfare" if Trump wins."
See. This is why you're a dumbass.
And then two other usal suspects show up to tell they've never read our constitution.
"I'm going to bet that you will be all for "lawfare warfare" if Trump wins."
It almost sounds like you're trying to make the point that it would be wrong to use lawfare against the people currently employing it. That can't be right, can it?
I have no idea what Trump will do but why shouldn't he treat the Democrats just as they have treated him?
And to be clear, I don't believe that Trump should use lawfare against the Democrats because that's the sort of shit weaselly people with no morals or conscience do.
I'm asking you why he shouldn't.
Poltics practiced at the fringe of The Twilight Amendment.
We don’t believe in novel legal theories or shooting our political opponents like you do.
No, you just believe in hanging them from lamp posts. And if you want me to go through the tiresome process of the times on this very forum where you have advocated death (maybe not specifically not shooting, but you and others have often declared that you have guns and know how to use them) of your political opponents, then I guess I will have to do it.
And again, when have I ever advocated the death of political opponents? The answer is never. So you are lying yet again.
I have no idea what Trump will do but why shouldn't he treat the Democrats just as they have treated him?
Because he supposedly stands for the rule of law?
We believe people who break laws should be prosecuted.
Stealing classified documents is breaking the law.
Mitigating the risk of the Ouroboros progression.
Storing unclassified documents is a crime?
You are correct. I want him to marshal every resource he commands as President to cause permanent and devastating harm to the Democrat Party. Hit the leftist scum ten times harder than they hit him. That is the only way they will get the message to stop it.
I can't believe I won my bet within a half hour.
Inga,
You are making a fool of yourself as usual- Weiss was already a Senate confirmed officer of the DoJ. Had Smith already been an AUSA there would have been no problem with Garland appointing him as a special counsel, but Smith wasn't. Additionally, as I wrote above, all Garland had to do was publicly admit that Smith was acting under his, Garland's, direct supervision. However, Garland wanted to preserve the politically useful facade of Smith being an independent agent not acting on orders from the DoJ or the Oval Office. Another ass hoisted on a petard.
Achilles should not be taken as a normal commenter, over the years he has displayed extremist ideologies and has advocated for killing his political opponents. He has spoken about blowing up Washington DC, burning down Washington DC, hanging his political opponents from lampposts, getting his veteran friends together for “wet work” against his political opponents. With all the violent rhetoric this lunatic has spewed here in these comments sections over the years it would be laughable (if it weren’t so creepy) for Achilles to accuse others of violence.
"Because he supposedly stands for the rule of law?"
That's a good reason, leads to another question: Why don't the Democrats?
“Weiss was already a Senate confirmed officer of the DoJ. Had Smith already been an AUSA there would have been no problem with Garland appointing him as a special counsel, but Smith wasn't.”
Yancey,
Rod Rosenstein under the Trump Administration, appointed Robert Mueller as a Special Counsel. Robert Mueller was not employed as a Senate appointed attorney at the time. So your premise and that of the corrupt cannon is wrong. You too are an idiot.
Greg wrote:
"So she's just saying straight out: You can't appoint a Special Counsel who hasn't been through the Senate"
She is saying Smith can't be the one exercising the powers of a proper, Senate-approved supervising officer. In other words, it was Garland's name that was require on all the warrants and indictments. Smith was free to prosecute the case and even make the decisions on what to do, but he wasn't free to do it on his own authority. The DoJ is full of non-Senate approved prosecutors who operate in the federal justice system all the time, but they do so under the direct supervision of properly appointed officers. Garland could have fixed this right at the start by appointing Smith but requiring Smith to get his sign offs on everything done or the sign-off of other properly appointed officers of the DoJ. He didn't do that because they needed it to look "independent". In short, it should have been Garland's name on everything or one of his direct reports in the DoJ.
Inga, you fool- no one challenged Mueller. Had they done so it is likely that he also would have been precluded from filing indictments. Try to keep up.
Freder Frederson said...
We believe people who break laws should be prosecuted.
Stealing classified documents is breaking the law.
Well, for once, you're absolutely correct. That's something VP Biden, who had no declassification authority did. And SECSTATE Clinton, who had no declassification authority did. Oh, she did all other kinds of things with regards to classified documents also. It's somethin Sandy Berger did. Apparently VP Pence...
But President Obama and President Trump, and other Presidents- by definition can't steal classified documents since they have ultimate classification authority. And declassification authority.
The case, as understood by everyone I know with a security clearance, which includes me, my wife, and most of my children, and a crapload of Facebook friends, has always been nothing but political- with absolutely no legal justification at all.
SECSTATE Clinton, OTOH, was a clear case if violating the law- but somehow, no reasonable prosecutor would prosecute...
Freder surprised that folks are outraged by the lawfare, over heated (and despicable) rhetoric, lies, etc., perpetrated by his fellow Democrat pack of running dogs wouldn’t mind seeing someone, ANYONE, give them an adult dose of the same fucking medicine.
Wake up and smell the catfood, Fredo.
Igna is here?
Teh moose is loose in teh hoose!
But President Obama and President Trump, and other Presidents- by definition can't steal classified documents since they have ultimate classification authority. And declassification authority.
But there are procedures to declassify documents, which Trump may or may not have followed, that is what the freaking case is about. And even if he properly declassified the documents (and it takes more than telling yourself you declassified them, which Trump has both claimed aThe case, as understood by everyone I know with a security clearance, which includes me, my wife, and most of my children, and a crapload of Facebook friendsnd contrarily, said he didn't) he still can't retain official documents.
The case, as understood by everyone I know with a security clearance, which includes me, my wife, and most of my children, and a crapload of Facebook friends, has always been nothing but political- with absolutely no legal justification at all.
Well you might not know me, but I also had a security clearance (since expired), and if you think Trump did nothing wrong, well, maybe your clearance should be yanked for believing this bullshit.
Yancey, you idiot, Special Counsels have been used for over 100 years, many weren’t challenged and many prosecuted cases and won. That someone didn’t challenge the Robert Mueller appointment as special counsel is neither here nor there, he WAS a Special Counsel, his appointment did not set a precedent, there were other Special Counsels appointed in the same way before him.
I can't believe I won my bet within a half hour.
You offered a wager, but no one took the under. We're all game theorists now, and "tit for tat" is the winning strategy.
Hi Inga,
You should find some other sources (maybe sources that understand law) so you won't sound so weird.
Yancy Ward: "This is what happens when you try to have your cake and eat it too."
Exactly. So much of what has corrupted our Constitutional law the last 50 years is allowing for this kind of evasion. "Disproportionate impact" or "Goals but no quotas" means public and private entities may engage in racial discrimination in favor of Democrat constituencies. Obamacare is upheld as an exercise of the taxing power, even though Democrats denied it was a tax at every stage of its enactment. "Chevron deference" means administrative agencies get to determine the scope of their own enabling law, with no scrutiny by federal courts. And, as here, a Democrat AG can appoint a "special prosecutor" so he can pretend that Democrat law fare is not what is being engaged in.
Mueller was under Ron Rosenstein's supervision. Smith was given independence by Garland.
That independence was not justified under the law.
Since I practice in fiscal/acquisition law, I'm interested in whether Smith committed Antideficiency Act violations by utilizing a budget for which there were no appropriations. If he wasn't a legitimate constitutional officer, who was warranted to spend that money?
But there are procedures to declassify documents, which Trump may or may not have followed, that is what the freaking case is about.
President Clinton was involved in a similar case twenty-odd years ago and the Supreme Court decided he had plenary executive power to declassify them in any manner he saw fit. It's a separation of powers issue.
President Clinton was involved in a similar case twenty-odd years ago and the Supreme Court decided he had plenary executive power to declassify them in any manner he saw fit. It's a separation of powers issue.
You seriously misread the case. In that case, the underlying issue was what is or is not an "official document" as opposed to "personal". As far as I know, the documents in question in this case can't be considered personal under any circumstances.
“Reaching back to the early 1970s, courts have repeatedly rejected efforts like Mr. Trump’s to question the legality of independent prosecutors. Those have included the Supreme Court upholding the appointment of Leon Jaworski, one of the special prosecutors who investigated the Watergate scandal, in a decision that was largely focused on the issue of President Richard Nixon’s claims of executive privilege.
Judges have also tossed efforts to invalidate the work of special counsels like Robert S. Mueller III, who examined connections between Russia and Mr. Trump’s 2016 campaign and David C. Weiss, who has brought two criminal cases against Hunter Biden, President Biden’s son.”
NYT
Trump lawyers will file motion to dismiss and will win (at Supreme Court if necessary).
Living in the lawless zone between a corrupt decision and the date of the appeal is no way to run a nation...
She needs to order Jack Smith to disgorge all the money he made in this case.
And make Merrick Garland jointly and severely liable.
Inga, please carefully read Judge Canon's opinion before commenting further on this topic. It's 93 pages of densely reasoned constitutional law regarding officers of the United States, what is required for their appointment, limitations on their powers and independent exercise of authority, possible statutory exceptions which have expired and no longer apply, et cetera, et f*ing cetera. You might learn something, but it is not light reading and there are no pictures.
Also, as to the Mueller appointment, if an issue is not brought before a judge pertaining to the case before her, she is not going to rule on it unless it is blatantly, obviously taking place in front of her.
Inga, you dumb fuck, just because something has been done for ages doesn't make it legal. I bet if you dig into these cases you cite, you will find actual authorization that was properly appointed. As I wrote before, Garland could have signed himself all of Smith's legal documents thus becoming the Senate-approved prosecutor and Smith would have just been an employee of the Garland prosecution of Trump. If you have any brains at all, just ask yourself why Garland didn't do that?
Field Marshall Freder: "As far as I know, the documents in question in this case can't be considered personal under any circumstances."
LOL
I must say, I am enjoying the stupidity being pushed by the Althouse New Soviet Democraticals!
Freder Frederson said...
We believe people who break laws should be prosecuted.
Stealing classified documents is breaking the law.
The Presidential Records Act is clear on this.
Opinion
Civil Action No. 10–1834 (ABJ).
AMY BERMAN JACKSON
The Court will grant the motion to dismiss pursuant to Rule 12(b)(1) because plaintiff's claim is not redressable. NARA does not have the authority to designate materials as “Presidential records,” NARA does not have the tapes in question, and NARA lacks any right, duty, or means to seize control of them. In other words, there has been no showing that a remedy would be available to redress plaintiff's alleged injury even if the Court agreed with plaintiff's characterization of the materials. Since plaintiff is completely unable to identify anything the Court could order the agency to do that the agency has any power, much less, a mandatory duty, to do, the case must be dismissed. "
"Because the audiotapes are not physically in the government's possession, defendant submits that it would be required to seize them directly from President Clinton in order to assume custody and control over them. Def.'s Mem. in Support of Mot. to Dismiss at 1, 15–18. Defendant considers this to be an “extraordinary request” that is “unfounded, contrary to the PRA's express terms, and contrary to traditional principles of administrative law.” Id. at 1. The Court agrees.
Judicial Watch, Inc. v. Nat'l Archives & Records Admin., 845 F. Supp. 2d 288, 302-3 (D.D.C. 2012)
The Court notes at the outset that there is broad language in Armstrong I stating that the PRA accords the President “virtually complete control” over his records during his time in office. 924 F.2d at 290. In particular, the court stated that the President enjoys unconstrained authority to make decisions regarding the disposal of documents: “[a]lthough the President must notify the Archivist before disposing of records ... neither the Archivist nor Congress has the authority to veto the President's disposal decision.” Id., citing H.R. Rep. No. 95–1487, at 13 (1978), reprinted in 1978 U.S.C.C.A.N. at 5744. Since the President is completely entrusted with the management and even the disposal of Presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.
Judicial Watch, Inc. v. Nat'l Archives & Records Admin., 845 F. Supp. 2d 288, 296-97 (D.D.C. 2012)
Freder Frederson said...
President Clinton was involved in a similar case twenty-odd years ago and the Supreme Court decided he had plenary executive power to declassify them in any manner he saw fit. It's a separation of powers issue.
You seriously misread the case. In that case, the underlying issue was what is or is not an "official document" as opposed to "personal". As far as I know, the documents in question in this case can't be considered personal under any circumstances.
Nobody misread the case.
You lying murderous assholes just apply the law differently to your political opponents.
Inga said...
“Reaching back to the early 1970s, courts have repeatedly rejected efforts like Mr. Trump’s to question the legality of independent prosecutors. Those have included the Supreme Court upholding the appointment of Leon Jaworski, one of the special prosecutors who investigated the Watergate scandal, in a decision that was largely focused on the issue of President Richard Nixon’s claims of executive privilege.
Judges have also tossed efforts to invalidate the work of special counsels like Robert S. Mueller III, who examined connections between Russia and Mr. Trump’s 2016 campaign and David C. Weiss, who has brought two criminal cases against Hunter Biden, President Biden’s son.”
NYT
They are just stupid people.
They are stupid enough to think they can shoot Trump in broad daylight at a political rally.
Inga is all kinds of wrong, of course. From Wiki: "Inspired in part by Watergate, in 1978 Congress passed the Ethics in Government Act. Title VI of this act was known as the Special Prosecutor Act and later renamed the Independent Counsel Act, which established formal rules for the appointment of a special prosecutor."
So we've had these special prosecutor critters for less than 50 years AND the law authorizing it expired. That was one strike against Smith: there is no current statute authorizing appointment of special counsels (which is exactly what Thomas wrote in the Immunity decision). Have courts deferred to AG's appointments, like Mueller or Weiss, like Inga asserts? Yes some lower courts have but the issue has never risen to SCOTUS and I'll take Thomas's expertise over Inga's on the matter. Because there is a caveat to that deference, however meaningful it was: all the other SC appointed were "officers of the United States."
That is they had been nominated by the president and confirmed by the Senate like AUSAs are. Smith had been one long ago before he ran off to the Hague to soothe his wounds for being overturned 9-0 by SCOTUS. But when he came back to the US he was and is a private citizen, not a US Attorney, and therefore ineligible to BE a SC. This why the case before Chutkin is doomed. Eventually, it appears, they will ask SCOTUS to rule on these ad hoc SC appointments where Garland didn't follow protocol. And they will lose, because Smith is a loser, like Garland.
This case is far from over.
“Cannon left open a potential pathway in her ruling for the classified documents case to be revived.
Prosecutors told Cannon in a hearing last month that the Justice Department was “prepared” to fund Smith’s cases through trial if necessary.
Smith’s team could also appeal the ruling, though any appellate challenges would make a pre-inauguration trial almost certainly out of reach.”
CNN
Also the Freder vs Achilles feud: Achilles is absolutely correct. The president has plenary power to declassify* and total discretion as to what counts as their "documents." To the point that the civil court (because this is not a legal question) stretched the definition of "documents" to include tangible objects like furniture and clothing that both Clinton and Obama claimed for their personal possession and denied to the Archives. The statute has never been interpreted to make the possession of documents from the President's office a criminal matter. Even if all the other tactics had succeeded this would have eventually sunk Smith's case.
If you object to this obvious Constitutional truism, please identify the person or persons who sit ABOVE the Chief Executive in the chain of command. Who do you think can tell the president "No" when he declassifies something?
There should be an asterisk attached to that bottom statement. Oops.
It's over Inga. Notice CNN didn't cite any precedence for their assertion Smith "could appeal." Maybe you should read Cannon's 98-page ruling where she dismantles Smith's basis.
Freder Frederson said...
...But there are procedures to declassify documents.
Why yes, yes there are. For everyone with declassification authority over certain types of documents who was granted that authority by the President of the United States. None of those rules and regulations authorized by the President apply to the President.
Note that nowhere in the "government's" case is any law cited showing that Trump didn't have authority to declassify documents. The entire case rests on the prosecution stating "we declare he has classified documents and you have to take our word for it!"
But since you're so absolutely certain Trump didn't follow the proper rules and regulations for document declassification- go ahead and cite the rules and regulations that the President of the United States, the ultimate classification and declassification authority in the United States must follow, and who made the rules...
Should be easy for you since you're certain they exist.
As far as the Mueller investigation goes, or went, Josh Blackman at the Volokh Conspiracy, writing in Reason, observes the following about that: {quoting…}
Earlier this week, I revisited the Mueller investigation in light of Trump v. United States. My conclusion: the entire basis of the investigation would have been void in light of the Court's decision. Virtually everything that triggered Mueller's appointment was a "core" presidential power. Moreover, nearly the entirety of the investigation probed Trump to determine whether he had "corrupt" motives–an inquiry that Chief Justice Roberts's decision foreclosed. In hindsight, this investigation should have never happened. I think we would have been all better off without that colossal waste of time.
{/unQuote}
Ya think?
“The simple solution is for Atty. Gen. Merrick Garland to treat the classified documents case as a crime like any other, one that doesn’t require a special counsel. He can direct a United States attorney to immediately refile the case in federal court, and under Cannon’s reasoning there would be no constitutional problems.”
LATimes
“Judge Cannon’s decision on Monday is flat-out wrong because it is inconsistent with U.S. Supreme Court precedents and the rulings of many other courts.
The Supreme Court said all this explicitly in United States vs. Nixon in 1974. A unanimous Supreme Court declared, “Congress has also vested in [the attorney general] the power to appoint subordinate officers to assist him in the discharge of his duties.” The court explicitly held that the attorney general could appoint a special prosecutor to investigate offenses arising out of the 1972 presidential election and allegations involving President Nixon.“
LATimes
Inga said...
“Judge Cannon’s decision on Monday is flat-out wrong because it is inconsistent with U.S. Supreme Court precedents and the rulings of many other courts.
The Supreme Court said all this explicitly in United States vs. Nixon in 1974. A unanimous Supreme Court declared, “Congress has also vested in [the attorney general] the power to appoint subordinate officers to assist him in the discharge of his duties.” The court explicitly held that the attorney general could appoint a special prosecutor to investigate offenses arising out of the 1972 presidential election and allegations involving President Nixon.“
LATimes
The only people dumber than the LA Times reporters are the people who still believe in Trump Russia Collusion, Hunter's Laptop being Russian disinformation, and that shooting your political opponents at a political rally in broad daylight is a good idea.
Oh Inga just read what Althouse posted from Cannon:
He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.
Maybe you don't realize the piece you quoted saying the "court explicitly held that the attorney general could appoint a special prosecutor to investigate offenses," they are referring to authorized "subordinate officers of the United States." "Subordinate officers" is in your quote. That is, US Attorney's or other officers duly confirmed, which Smith is NOT.
All your fluffy bluffing won't correct that. Smith is simply a private citizen, just like Justice Thomas said.
The LA Times' take is even more laughable than Chuck's or yours Inga. I refer you to me, upthread:
Who do you think can tell the president "No" when he declassifies something?
I think they're trying to seize the original smoking gun evidence of Justice Department chicanery that occurred during his presidency in order to burn it before DJT reveals it.
“The only people dumber than the LA Times reporters are the people who still believe in Trump Russia Collusion, Hunter's Laptop being Russian disinformation, and that shooting your political opponents at a political rally in broad daylight is a good idea.”
“Erwin Chemerinsky is a contributing writer to Opinion and dean of the UC Berkeley School of Law.”
There is no one dumber and weirder than Achilles who often tries to present himself as possessing intelligence.
Achilles said... "You lying murderous assholes just apply the law differently to your political opponents."
Yep. Pretty much that. Exhibit A, earlier in this comment section:
Mason G... "I have no idea what Trump will do but why shouldn't he treat the Democrats just as they have treated him?"
Freder Frederson... "Because he supposedly stands for the rule of law?"
Mason G... "That's a good reason, leads to another question: Why don't the Democrats?"
Freder Frederson... *crickets*
Following up Mason's excellent recap, I endorse the John Yoo strategy. You give back a small measure of the lawfare crap that the democrats have dished out over the last eight years until the squeal uncle. All it took was ONE Democrat targeted by a special counsel and they let the statute expire. After harassing Nixon, Reagan, Bush I and Bush II they just couldn't stand it when poor little Clinton had to endure the indignity of an investigation and report.
Democrats can dish it out but are notoriously soft and weak when it comes to taking punishment. The only way to ensure peace going forward is to show them what hell they have wrought. Just the low-hanging fruit of graft and nepotism would be enough to have them begging for a settlement. Take down the Uniparty Members with them. Stop letting them run Congress like a get rich quick scheme for life.
There is a continuum of anti-American participation here at Althouse.
It ranges from true believer, then smart-ass, down through clueless, all the way to useful idiot.
Fun to watch.
Carry on.
A number of the usual suspects don't understand that under the US Constitutional system everyone in the federal executive branch has someone to report to, and the ultimate is the president, as in "The Buck Stops Here." Either Smith reported directly to a district US attorney or he reported to the Attorney General directly. There is no legal provision for an independent prosecuting attorney who would , in effect, be a fourth branch of government.
Inga: "There is no one dumber and weirder than Achilles who often tries to present himself as possessing intelligence."
Go ahead Inga. Admit you STILL believe in russia russia russia collusion...and the hoax dossier.
Go ahead.
LOL
Are we back to "the walls are closing in" yet?
Blogger Mike (MJB Wolf) said...
Following up Mason's excellent recap, I endorse the John Yoo strategy. You give back a small measure of the lawfare crap that the democrats have dished out over the last eight years until the squeal uncle. All it took was ONE Democrat targeted by a special counsel and they let the statute expire.
I endorse this strategy as well.
"A number of the usual suspects don't understand that under the US Constitutional system everyone in the federal executive branch has someone to report to, and the ultimate is the president, as in "The Buck Stops Here." Either Smith reported directly to a district US attorney or he reported to the Attorney General directly. There is no legal provision for an independent prosecuting attorney who would , in effect, be a fourth branch of government."
Exactly.
Inga said...
This case is far from over.
“Cannon left open a potential pathway in her ruling for the classified documents case to be revived.
Prosecutors told Cannon in a hearing last month that the Justice Department was “prepared” to fund Smith’s cases through trial if necessary.
Smith’s team could also appeal the ruling, though any appellate challenges would make a pre-inauguration trial almost certainly out of reach.”
CNN
The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel's position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.
Jack Smith was not appointed in the manner proscribed by the Appointments Clause. Smith's appointment was not legal. Smith used powers that he did not legally have.
Period. Crayons. Small words.
Smith had as much standing and power to charge Trump with crimes as Inga does.
I have as much power to charge Biden with Treason as Smith has to charge Trump with doing exactly what Biden did.
The only thing that is not over is the whining of illiterate murderous hags like Inga who can't even read the things they copy and paste from ignorant regime propaganda monkeys like the NYTs, CNN and LATimes.
Also, SMITH has run through ~ $22MM in costs and fees in apparent violation of the Appropriations Clause. Inga et al need to quit relying on Larry Tribe. He’s no longer an academic but a polemicist.
Inga, you really need to learn when to shut up and stop proving how ignorant and uninformed you are. Pull a Chuck and take a break. Your puerile, inane comments sway no one.
“Also, SMITH has run through ~ $22MM in costs and fees in apparent violation of the Appropriations Clause. Inga et al need to quit relying on Larry Tribe. He’s no longer an academic but a polemicist.”
How does Smith get to claim that Garland supervises everything he does, then get funded as an Independent Counsel? It was having his cake and eating it too.
As others have pointed out, the payments were illegal. So why can’t sue everyone involved to get that money back? You know it’s going to happen, esp with a statutory percentage for whoever succeeds at it.
Inga, even Chuck has accepted this obvious defeat. There will be no Trump in jail moments to celebrate. Every open case is crumbling and the one jury decision will lose on appeal if it’s not vacated first, which is likely since Bragg used privileged information that a recent SCOTUS ruling clearly forbids. It’s over.
It appears Freder has left the building (or this thread, anyway). Pity- I was hoping to hear his/her/its (don't know the correct pronoun) explanation about why Trump should respect the rule of law while Democrats regularly demonstrate that they don't.
To answer the question of the funding for Smith's prosecution, follow where the funds came from. If the Justice Department then Smith needs to act under the Attorney General. If not, then which agency? If from private donations then truly we are in Whiskey Tango Foxtrot territory.
“To answer the question of the funding for Smith's prosecution, follow where the funds came from. If the Justice Department then Smith needs to act under the Attorney General.”
And if he is acting under the AG, then where in the DOJ budget was he funded? He wasn’t, of course.
BillieBob Thorton: "Are we back to "the walls are closing in" yet?"
Apparently we have reached the "where the hell did the walls go?! They were just here!!" phase.
Inga said...
“The simple solution is for Atty. Gen. Merrick Garland to treat the classified documents case as a crime like any other, one that doesn’t require a special counsel. He can direct a United States attorney to immediately refile the case in federal court, and under Cannon’s reasoning there would be no constitutional problems.”
Do you even read what you copy and paste?
This is exactly the argument made by Yancey Ward and what I pointed out with regard to the Hunter Biden investigation by AUSA David Weiss. Jack Smith is not an AUSA. He has no power to charge anybody. The signature on any documents he presents to the court should be "Merrick Garland" but because the Biden Administration can't find another conveniently compromised AUSA like Weiss to persecute the Trump documents case, they're trying to do an end-around using a fake 'independent prosecutor' to hide the fact that Garland is directing this persecution against his boss's biggest political rival. The only people who fall for this crap are the ones who come around internet comment sections to bleat "Trump baaaaaaaa-aaaad" whenever their fantasies get upended.
Bruce Hayden: Exactly. People were paid their salaries - from which agency's budget?
I have been told by the New York courts that how a payment is made from where, how it is characterized, is very important.
Jon Ericson said...
I think they're trying to seize the original smoking gun evidence of Justice Department chicanery that occurred during his presidency in order to burn it before DJT reveals it.
7/15/24, 3:42 PM
Last I heard, we were finding out that the "top secret" files Trump supposedly stole were actually planted in the boxes by the commie rat running the National Archives under the direction of Beria Garland's secret NVA/DOJ. And before the Party media snuffed this story, the assumption was that Trump sniffed out the plot and pulled the planted evidence. Hence the DOJ/FBI raid and the subsequent arrest and the intense media/psyops following and continuing to this day.
Democrat Party members are exactly like the shitty old Soviet commies, in every way.
But since you're so absolutely certain Trump didn't follow the proper rules and regulations for document declassification- go ahead and cite the rules and regulations that the President of the United States, the ultimate classification and declassification authority in the United States must follow, and who made the rules...
Although the statute is less than clear, under 10 CFR Part 1045, apparently only the DoD and DoE are authorized to declassify nuclear secrets. The president, if the two departments disagree, can be the tie-breaker, but he does not have the authority to independently declassify nuclear secrets. Here is an article about this. I realize that it is the Brennan Center which you will automatically discount. But if you have contrary arguments, please provide links.
And once again, Achilles lies.
Freder, are you seriously arguing that the CFR overrides the Constitution???
“Freder, are you seriously arguing that the CFR overrides the Constitution???”
I think he must believe that. A lot of leftists believe that bureaucrat created rules should override the President. I think that he missed the entire discussion about recent Supreme Court cases. The President is the Executive. Whatever power they have is derivative of his. He has plenary classification and declassification authority.
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