A judge on Monday dismissed the federal indictment against former president Donald Trump on charges of mishandling classified documents — his second seismic legal victory in less than a month, following a historic Supreme Court decision on immunity.
Judge Aileen Cannon has demonstrated time and again that she will do whatever it takes to slow Trump's trial to a crawl, and now she's decided to simply say the hell with it and let the world know she's completely in Trump's pocket.
I don't doubt this decision will be quickly overturned on appeal, but "quickly" in the legal world means months. Maybe it will end up in the Supreme Court.
This leaves me speechless. I haven't read Cannon's opinion, and I don't know if I'll bother. It's loony tunes time.
Of course it will end up in the SC who will rule that former presidents personally own anything they ever put their tiny orange hands on while in office.
I think Smith foresaw something like this coming into play, which is why Trump technically isn't charged with anything he did with the documents while still in office when he had top clearance (and, it seems now, full immunity) but rather lying to a grand jury about returning them and obstruction of justice in attempting to conceal/keep them later in 2021. Of course I'm sure Alito and Thomas are itching to get back to this immunity case and rule that all Presidents -- only if they're Republicans of course -- are entitled to lifelong immunity for anything.
She tossed it because she decided, at Clarence Thomas's suggestion in his concurrence to the immunity decision, that Jack Smith's appointment as special counsel was unconstitutional. Thomas's suggesstion lacks the weight of law, and there's no precedent establishing the appointment as illegal. Most recently, Hunter Biden tried to get his case dismissed on the same grounds and the Trump-appointed judge ruled against him.
She is auditioning for a Supreme Court appointment much like Brett Kavanaugh did when he convinced Ken Starr to let him conduct yet one more Republican-led investigation of the insane, vicious lie that the Clintons had murdered their close friend Vince Foster. His memos from that investigation show he had made a point of assuring his colleagues that he didn’t really believe Foster had been murdered — and his death had been investigated multiple times by Republicans who came up empty handed. ( Who says Republicans were normal before Trump? It doesn’t get more extreme than accusing the sitting president and his wife of murder.)
Hunter's Biden's argument was the exact opposite of Trump;s argument. Hurs (Joe Biden's special counsel and Weiss, Huntrer's special counsel) were claimed to be illegal special counsels because they have offices consented to by the senate. But the statute creating the special counsels offices explicitly says the special counsel should/must not hold a senate approved position in the DOJ (there are are weasel words that give the attorney general authority to make exceptions best on his best judgement.) Conservatives opposed this argument when they thought Durham was going to prosecute Joe, fullly back this argument when it appeared Weiss wasn't going to prosecute Hunter and now apparently support it again. Cannon got around the fact that the statute creating special counsels explicitly says the special counsel shouldn't hold a senate approved office and was working directly under the authority of the senate approved AG and thus didn't need senate approval, by claiming said statute doesn't exist.
"But the statute creating the special counsels offices" should say regulations, not satute. The relevant statutes are ones that confer the power to investigate/prosecute crime on the attorney general.
Can you even appeal a case being thrown out?
She claims the prosecutor was illegally appointed. One would hope if she got the law wrong there'd be a way to bring that to the attention of a higher court. But it doesn't really matter, because that's plainly not going to happen before the election.
Just from what I know from people who know these things, it can be appealed to the 11th Circuit with the possibility to additionally request reassignment to a different judge.
That's what I've seen, too. The question is whether any of that takes place before the election and Trump just has the case closed and pardons himself.
Normal briefing schedules involve 30 days per side, plus 15 for reply. If Smith filed today, that's 75 days before briefing is done, bringing us to ~Monday, September 30, leaving just 36 days for an oral argument and an order from the 11th before the election. That's not enough time, and certainly not enough time for the case to go back to another district court judge and for anything substantive to happen there.
Now, Smith could move for accelerated consideration, but that would involve front-end motion practice (since Trump would oppose), so on these timetables, it's probably a wash at best.
Moreover, fully half of the active duty judges on the 11th are Trump appointees, meaning a motions panel draw is very likely to have at least one of them, and even if not, the 11th is extremely unlikely to accelerate this case since they know as well as anybody that if they don't act before November, they may never have to deal with the case at all.
So, best guess is that nothing substantive happens for the rest of the year at least. Judge Cannon effectively took this case off the board. It's done unless and until Biden (Harris?) wins in November.
According to Cannon herself (per what I've read online in CNN's analysis - The Washington Post is extremely slow on this!), the answer is affirmative.
A "case being thrown out" is too broad. In this case, she made a ruling of law, so yeah, it's appealable.
It's loony tunes time
Not loony tunes time. Deep corruption time.
People talk about a dictatorship descending on the country if Trump wins. They're scared. So am I. But the thing is, we're seeing the evisceration of the rule of law before our eyes—in real time. No need to wait for Trump!
Exactly!
Not just deep corruption. Given the totality of relatively recent events it's carte blanche for the nascent authoritarians and their blackshirts, and open season on anyone they decide is the enemy, which is to say everyone else. This includes murder, as Abbott demonstrated in Texas. This is it; this is our slide into Stalinism, American style. Right in front of our eyes, in real time. Anyone who thinks that TrumpCo won't declare emergency measures, or suspend the Constitution, or whatever other means to absolute power they can pull off (which is still to some degree in question) is not dealing with reality.
Dodged another bullet.
aileen kevlar to the rescue.
Corruption isn't always about money.
Often as not, it's nature.
oh, i'm sure she's angling to get paid too, one way or another.
Oh, no! Merrick "dot every i and cross every t" Garland didn't dot every i and cross every t. Who could have seen that? (Answer: lots of us)
He has woefully underestimated Trump's relentless efforts to avoid conviction, time after time. This appointments issue was known in advance and Garland should have proceeded in a manner that avoided challenges.
So happy this inept guy was made AG to make up for not getting on SCOTUS.
I want Garland to hold a press conference where he can reassure the country that's he's not an incompetent, lackadaisical, timid fool.
If her interpretation is correct she could have made this ruling months ago, sure seems she stalled long enough that the appeal will be delayed until after the election
This imbroglio could have been avoided if Garland hewed strictly to the regulations such that the appointment was bullet proof. He didn't.
name the regulations.
The whole argument is that Garland can't appoint any SCs in any way, regulations or not, because the position isn't specifically funded by a Congressional appropriation. Garland didn't do anything wrong.
so is dana decker just not very bright or a chaos agent?
Dana Decker is an asshole. Kevin’s blog is littered with them.
Except the position is specifically funded by a Congressional appropriation. Cannon says that statute is unconstitutional since perpetual appropriations such as all appropriatons labeled non discretionary including social security and medicare) are unconstitutional.
Garland did nothing wrong her ruling is bullshit
Actually, the case is being tossed because Garland hewed strictly to the statute and regulations. Cannon claimed the relevant statute doesn't exist.
Comment should only refer to regulations, not statutes.
That's pretty much it -- just delay it until after the election, at which point SCOTUS can step up to consider it and just drag their heels forever, effectively shielding Trump,, or Trump will simply pardon himself and his co-defendants on Inauguration day 2025. See? The system works.
why would he need a pardon if he committed no crime?
so were the biden & pence special prosecutors in their documents cases also appointed unconstitutionally?
No. Because democrats and non loyal Republicans aren’t deserving of constitutional rights. Duh.
If Cannon is upheld, then yes.
Those special prosecutors were sitting US attorneys and hence confirmed by the senate. The issue in their case is that the special counsel statute says sitting US attorneys are not eligible to be special counsels. (But there is another provision allowing the attorney general to use his best judgement in appointing special counsels and so it was ruled that this provision overrides the provision forbidding sitting US attorneys.
The word statute should be regulation.
Robert Mueller was not a sitting US attorney at the time of his appointment. His legitimacy was not challenged in court.
Oops, error. A Russian social-media company/troll farm, indicted by Mueller, moved for dismissal on the same grounds, and was denied by Trump appointee District Court Judge Dabney Friedrich in United States v. Concord Mgmt. & Consulting LLC
The opinion rests on a lalaland determination that, although the appointments clause allows agencies to appoint inferior officers where congress so empowers them through statute, 28 USC 515 and 533 somehow do not empower DOJ to do just that. This, despite section 533 rather explicitly saying "The Attorney General may appoint officials . . . to detect and prosecute crimes against the United States."
Given that, its unclear what Garland or anybody else could do, as Judge Cannon appears to believe that the instution of a special prosecutor--which has existed for longer than Cannon herself has--is illegal despite being squarely within the law.
"Judge Cannon appears to believe that the instution of a special prosecutor--which has existed for longer than Cannon herself has" This is false. Special counsellers date to 1999. Special prosecutors were ruled unconstitutional shortly before that based on the brand new theory of unitary executive. (Theories on the meaning of the constition originating in the 1990s are always of suspect nature.) Special prosecutors had independence and under the idea of a unitary executive, there can be no independence in the executive branch of the US government. So special counsels were created, explicitly under the supervision and exercising power delegated by the attorney general. Hence why they are explicitly not officers of the US government and do not need senate approval.
Special prosecutors and independent counsel have been around for a lot longer than just back to 1999, and 28 USC 533 was enacted in 1966. So, yeah, the institution (if not the specific authority) absolutely predates Aileen "same age as Raiders of the Lost Ark and The Road Warrior" Cannon.
Garland has been lied about & demonized enough already. He should start suimg for defamation.
In fact, the statute creating special counsels explicitly states they shouldn't have senate confirmed offices. Hunter tried to get Weiss's charges thrown out because Weiss violates that part of the statute. Cannon got around this by claiming the relevant statute doesn't actually exist. So Garland is being hoisted on his own petard because he crossed his t's and dotted his i's.
The positive side of this is that it demonstrates to those who have doubts that if Trump wins, he will not be constrained by the courts in any way.
So the District Courts in this country are also the HR department for DOJ.
At least Hunter Biden can now get his conviction reversed and dismissed.
Marcy Wheeler agrees: https://nitter.poast.org/emptywheel/status/1812895389265088750#m
I’m sure that special counsels still will apply to Democrats and their families.
I doubt that. Weiss was already a Senate-confirmed U.S. Attorney, for Delaware where at least some of the alleged crimes were committed. He was simply detailed to the Hunter Biden case and then asked for Special Prosecutor status in order to investigate the California allegations.
Maybe they'd be off the table, but not what happened in Delaware.
Also, SD Fla decisions are not binding on DDe (in fact, district court decisions are not binding on other courts in the same district except for res judicata/collateral estoppel); nor would an 11th Circuit decision be binding on DDe cases.
All of which is beside the point anyway, since the SUPREME COURT has already spoken to this question, and Aileen Cannon is either stupid or cynical in thinking that maybe either this set of Supremes (with its penchant for ripping up precedent) and/or a 2025 Trump Administration has her back.
Special prosecutor status was irrelevant to prosecution in California. All US attorneys have the power to bring cases anywhere in the country. There is a regulation requiring that they inform the local US attorney when they bring a case in that person's jurisdiction and must allow him to participate if he so desires.
...
So she *can* make timely rulings after all! Two weeks after Thomas gave her the road map, and the morning of the RNC convention. Pure coincidence, assuredly.
Although she had probably been hard at work on that 93-page decision for a while, but was just waiting for that SCOTUS cover & the Republican convention.
Chaos agent who's in Trump's pocket.
This will put the case in front of a different judge, and that's good. In effect, Cannon has removed herself from the case.
Not in time, sadly.
"This will put the case in front of a different judge, and that's good"
How, exactly? It'll go to the 11th, and either die there when Trump regains the oval office, or potentially be returned to SD Fla when the 11th is done with it if not. Judges get cases reversed and remanded back to them all the time--it's unclear why we should all assume that Cannon will be removed.
Nakedly corrupt.
It's not corruption -- that's a very specific type of malfeasance and one that would be practically impossible for Smith or DoJ to prove.
Cannon's actions, if anything, is evidence of bias, and one that is rectifiable by appeal and/or writ of Mandamus.
The question is, what will the DoJ/Smith do? Will they take Cannon at her word and hire or reclassify Smith and his team as employees (or independent contractors) of DoJ then refile the case? I mean, if you want to play her game, play her game and make her take another step out on the ledge, amirite?
Or will they appeal to the 11th, or move for the Mandamus home run?
On a separate note, I want to reiterate my point that Biden/Democrats ought to propose that a win in November will bring reform to SCOTUS, by introducing a layer of the body of senior circuit court judges empaneled to review SCOTUS rulings, in order to make the judiciary more stable and less prone to extremism.
I'm not sure what the point is of giving SCOTUS its own SCOTUS. All that provides is a new layer to game. Also don't think it is constitutional.
What IS constitutional, because the Constitution gives Congress the power to create the court any way they see fit, is to enlarge it to 13 with each justice serving a single 13 year term, and someone retiring every year whether they want to or not. Provide them with a binding code of ethics with an inspector general to determine if they should recuse.
Adding an appellate layer above SCOTUS doesn't violate the Constitution, IMO. Under the Exceptions Clause, Congress is able to exclude SCOTUS from final appellate review of certain classes of cases. It should follow that Congress can also exclude SCOTUS from final review of any case that involves stare decisis by placing another body above it.
Term limits is implicitly unconstitutional under the Good Behavior Clause, likely requiring a constitutional amendment.
"I'm not sure what the point is of giving SCOTUS its own SCOTUS. "
The main point is increasing the number of people that mke fundamental constitutional decisions. The fact it is only 9 people currently is just non-sensical.
"own SCOTUS" is a wrong decsription. More accurate would be something like "extended panel".
About the SCOTUS change:
It is a reasonable approach to improve democracy, but it is not obviously a good campaign issue. Anybody that cares about democracy will vote for Democrats anyway, and those that don't care about democracy probably do not care about changes to the SCOTUS.
At the very least, there is now a good case to be made for requesting her removal from the case.