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More court stuff
but from a lower court this time, to wit Aileen Cannon's court in Florida, supervising the most straightforward, slam-dunk of the numerous legal cases against Donald Trump, the withholding of national-security documents after he left office. The evidence is rock-solid and abundant, the law is crystal-clear, there's an abundant history of other people being prosecuted and punished for the same and closely-related crimes, and any ordinary former Federal employee who did what Trump did would have been locked up for the rest of his life at least two years ago.
This Trump-appointed judge has already given remarkable credence to many of Trump's Hail-Mary plays, granted him months and months of delay, and drawn sharp rebukes from her supervising District Court, but the latest move is to dismiss the entire case. As mentioned above, she can't do this based on the evidence, or the law, or the precedents. But Clarence Thomas's concurrence in the immunity case two weeks ago gives her another way out: Thomas says the whole idea of a special counsel is un-Constitutional, so Jack Smith has no authority to bring any charges against anybody. So that's her basis for throwing out the whole case: it was brought by a special counsel, and there's no such thing as a special counsel, so there's no case.
Her decision is here. To sum up her reasoning in brief,
Which is a somewhat tortuous path, but makes some sense. I for one would be happier if there were a law in place (rather than merely Justice Department policies) specifying what a Special Counsel is and does. But IIUC, the existence of Special Counsels was already challenged in court in 1974 (before the Independent Counsel Act was passed), and the Supreme Court basically upheld it; the law's expiration in 1999 should have returned us to the legal status of 1974. Judge Cannon has decided, on her own, that this was a peripheral, not a central, holding of the Supreme Court case and therefore she's not obligated to follow that precedent. (Since when do lower court judges pick and choose for themselves which Supreme Court precedents they have to follow?)
Of course, that's a motivated dodge; her real hope is that Justice Thomas will persuade a majority of the Supreme Court to back his position that Special Counsels are un-Constitutional. Even if so, the case wouldn't be heard or decided until 2025, by which time Trump will be in office and he can just order all the cases against him dropped. (Jack Smith has given some hints that, as a Special Counsel, he wouldn't be bound to obey such an order.)
So what happens now? I suppose theoretically a District Attorney could take over the case, perhaps hiring Smith as an assistant (which is within the powers of a District Attorney). Trump's lawyers would of course argue that everything Smith has done to date, including convening two grand juries and getting a bunch of indictments, must be thrown out and started over from scratch. But let's suppose that argument fails.
District Attorneys are political appointees, confirmed in a partisan process, and subject to dismissal at will by the President. So when they're asked to conduct a politically-sensitive investigation or prosecution, it's easy to accuse them of doing the President's partisan bidding rather than disinterestedly following the law. Independent/Special Counsels were invented specifically to insulate them from political influence, so their findings would have more credibility. Justice Thomas and Judge Cannon are telling us we can't do that unless Congress specifically authorizes it -- and Congress is unlikely to pass anything with such partisan implications any time soon, certainly not in a Presidential election year.
However, perhaps it doesn't really matter whether the prosecutor is insulated from political influence; Republicans will accuse the prosecutor of doing the President's partisan bidding anyway, and as soon as they have the White House, they'll require prosecutors to do the President's partisan bidding. What good is power if you can't use it to destroy your enemies and reward your friends?
This Trump-appointed judge has already given remarkable credence to many of Trump's Hail-Mary plays, granted him months and months of delay, and drawn sharp rebukes from her supervising District Court, but the latest move is to dismiss the entire case. As mentioned above, she can't do this based on the evidence, or the law, or the precedents. But Clarence Thomas's concurrence in the immunity case two weeks ago gives her another way out: Thomas says the whole idea of a special counsel is un-Constitutional, so Jack Smith has no authority to bring any charges against anybody. So that's her basis for throwing out the whole case: it was brought by a special counsel, and there's no such thing as a special counsel, so there's no case.
Her decision is here. To sum up her reasoning in brief,
- The Constitution says the President makes executive appointments, with confirmation by the Senate. It allows Congress to authorize the courts or heads of executive departments (such as the Attorney General) to make appointments too, within limits set by Congress.
- District Attorneys are appointed by the President and confirmed by the Senate, not appointed by the Attorney General.
- The Special Counsel has all the powers of a District Attorney, but is neither appointed by the President nor confirmed by the Senate, but rather appointed without confirmation by the Attorney General.
- Congress passed a law in 1974 authorizing the Attorney General to appoint Independent Counsels, but that law expired in 1999 and was not reauthorized. Since Congress could have reauthorized the law and chose not to, this means it was the will of Congress to withdraw the authority it had previously given the Attorney General.
- Therefore the Attorney General has no authority to appoint Independent or Special Counsels, so...
- ... Jack Smith has no authority to bring Federal charges against anybody.
Which is a somewhat tortuous path, but makes some sense. I for one would be happier if there were a law in place (rather than merely Justice Department policies) specifying what a Special Counsel is and does. But IIUC, the existence of Special Counsels was already challenged in court in 1974 (before the Independent Counsel Act was passed), and the Supreme Court basically upheld it; the law's expiration in 1999 should have returned us to the legal status of 1974. Judge Cannon has decided, on her own, that this was a peripheral, not a central, holding of the Supreme Court case and therefore she's not obligated to follow that precedent. (Since when do lower court judges pick and choose for themselves which Supreme Court precedents they have to follow?)
Of course, that's a motivated dodge; her real hope is that Justice Thomas will persuade a majority of the Supreme Court to back his position that Special Counsels are un-Constitutional. Even if so, the case wouldn't be heard or decided until 2025, by which time Trump will be in office and he can just order all the cases against him dropped. (Jack Smith has given some hints that, as a Special Counsel, he wouldn't be bound to obey such an order.)
So what happens now? I suppose theoretically a District Attorney could take over the case, perhaps hiring Smith as an assistant (which is within the powers of a District Attorney). Trump's lawyers would of course argue that everything Smith has done to date, including convening two grand juries and getting a bunch of indictments, must be thrown out and started over from scratch. But let's suppose that argument fails.
District Attorneys are political appointees, confirmed in a partisan process, and subject to dismissal at will by the President. So when they're asked to conduct a politically-sensitive investigation or prosecution, it's easy to accuse them of doing the President's partisan bidding rather than disinterestedly following the law. Independent/Special Counsels were invented specifically to insulate them from political influence, so their findings would have more credibility. Justice Thomas and Judge Cannon are telling us we can't do that unless Congress specifically authorizes it -- and Congress is unlikely to pass anything with such partisan implications any time soon, certainly not in a Presidential election year.
However, perhaps it doesn't really matter whether the prosecutor is insulated from political influence; Republicans will accuse the prosecutor of doing the President's partisan bidding anyway, and as soon as they have the White House, they'll require prosecutors to do the President's partisan bidding. What good is power if you can't use it to destroy your enemies and reward your friends?