Trump Indictment ( includes NY AG and Fed documents case ) (1 Viewer)

[SteveSBrickNJ]

Former President D. Trump has been indicted by a New York Grand Jury. There will be much to talk about on this topic because this is just the first step in a lengthy process.
Possibly it is worthy of its own thread here rather than posting about Trump's indictment in already existing threads?
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This 3/31/23 story might get the ball rolling....
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Manhattan’s DA wanted a Friday Trump arrest. Trump’s team said no.

Secret Service needed more time to prepare, according to the ex-president’s legal team.

www.yahoo.com

 

[Sendai]

Logical solution is for Garland to simply appoint a sitting U.S. Attorney.

 

[superchuck500]

I respect Chuck's knowledge and opinion but I don't believe there is no evidence that Cannon is partisan hack, I think it's rather obvious.....

I never said that. She is certainly a hack and there is certainly evidence that she is partisan.

 

[superchuck500]

So, I will take chuck’s opinion over yours. I noticed you really haven’t responded to his explanation of why Cannon is wrong.

I appreciate the confidence but I don't think I said Cannon was wrong - i hadn't reviewed it well enough to say. I was saying that @Sendai wasn't using the right terminology.

I have now read Cannon's opinion - and I've read the DC Circuit opinion on largely the same question. I can say for sure that Cannon's opinion is very well written and I am 100% sure that she didn't write it. Of course, federal district judges often rely on their law clerks for opinion writing, some moreso than others, and I'm not sure what her staff looks like at the moment - and noting also that there was extensive, well-written briefing here that is also easily borrowed from (there is no plagiarism in law). But she didn't write this and I'm pretty confident that she would have difficulty in answering truly challenging questions about it . . . she's just not that kind of judge.

Nonetheless, it is the official decision of the court and it is well done as district court opinions on complicated mechanical applications of federal law and history go. But at the same time, the DC Circuit examined a very similar question and took a more accommodative view in light of the Supreme Court in Nixon and the AG's highly deferential authority to regulate the Department of Justice. I think ultimately, Cannon takes a hyper-technical reading of the relevant authorities because - she posits - appointments are a constitutional device and should be strictly interpreted. That's a fair position but in the bigger picture of what the Attorney General can do within the Department of Justice, it will remain to be seen whether the 11th Circuit (and ultimately SCOTUS) agree with Cannon's insistence that legislative text that both the Supreme Court and the DC Circuit have found accommodate the AG actually constrain him.

It's quite bold of her to dismiss Supreme Court language about what a statute authorizes as "unreasoned dicta" because the Court didn't explain much about why it thought that the statutes in question authorized special proseuctors/counsel. As long as she is willing to say why, she reasons, that allows her to deviate . . . but it could very well be that the Court didn't say why because it didn't believe it had to. Certainly the DC Circuit's Mueller ruling follows Nixon rather than departs from it.

What is truly ironic here is that the Biden administration confronted a clear legal need and social demand to investigate the former president, by hiring a quasi-independent outsider to come in to be special counsel precisely to avoid any appearance that the president was using DOJ to investigate Trump for political reasons. I think the White House and DOJ were very concerned about that and what it could mean for history and precedent but at the same time recognizing that Trump's efforts to avoid the election results (and later the evidence of Trump's handling of the documents) were unprecedented and required investigation by someone authorized to bring charges . . . not someone who had to be told to bring charges by the DOJ establishment.

It was not some kind of extra-jurisdictional gambit - DOJ could have easily ran the investigations through the offices of various US Attorneys or through the Criminal Division, with no meaningful difference in the case we have now. But they wanted to defuse, as much as they could at least, reasonable inference that it was a partisan program directed by the president or his political appointees. It was the intention precisely to be independent in the name of objective justice that was the challenge that they attempted to solve with this process that has now been found to exceed the administration's authority.

I think that's unfortunate in the end. But at the same time, I think that much of what Cannon says about the need for the constraints upon the creation of federal officers is equally valid in the interest of justice in America, in the big picture. I'm very interested to see how this plays out.

 

[MT15]

Cannon's opinion is very well written and I am 100% sure that she didn't write it.

What are the ethics for a judge relying on outside people for their written opinions? I’ve been very suspicious that she is getting a lot of help with how to derail this entire trial.

Oh, and I appreciate the analysis. I wish they would just appoint Jack Smith as an AUSA and refile the case.

 

[superchuck500]

What are the ethics for a judge relying on outside people for their written opinions? I’ve been very suspicious that she is getting a lot of help with how to derail this entire trial.

Oh, and I appreciate the analysis. I wish they would just appoint Jack Smith as an AUSA and refile the case.

The opinion ultimately has her signature on it as federal district judge and it's her ruling - I have never heard of any particular concern about the writing process. It's not about the authorship, it's about the ruling and supporting analysis.

Note that everything she rules on has been briefed by Trump's attorneys, and certainly when it comes to rulings that would be favorable to Trump, they have briefed her on it, so she doesn't really need outside help on that. With this particular ruling, there were multiple amicus briefs including one signed by former AG Meese and two law professors of note - and the court is free to adopt liberally from those filings.

 

[SaintForLife]

The latest is that Glenn Kirschner is arguing that it is no big deal to the documents prosecution if Judge Cannon’s dismissal decision is affirmed by either the Eleventh Circuit or the Supreme Court because a U.S. Attorney can just take the prosecution over as is.

He’s missing that if the Special Counsel Office is illegal, then the entire indictment is fatally infected — as is Jack Smith’s other indictment in D.C. for “J6.”

But one can’t so easily imagine that the grand jury indictments Smith got are lawful.

So no, Glenn Kirschner, a U.S. Attorney can’t just take over the cases. The cases have to be dismissed and a new U.S. Attorney has to start from scratch.

Moreover, any such U.S. Attorney subbed in for Smith would need to make sure they put no testimony that violates Trump v U.S. — the immunity decision — before the grand jury. Even beyond the defect of Jack Smith’s participation in the grand jury indictments (which itself is fatal to them), evidence was put in front of the grand juries by Jack Smith and his team that is now unconstitutional to present. That also — totally independently of Smith’s validity — requires totally new grand juries.

Finally, Kirschner goes himself one better — or really one worse — when he argues that the new U.S. Attorney can simply turn around and hire Jack Smith and Smith’s subordinate.

This guy has no respect for the Constitution. It’s all just a game to him, a game where he looks for ways to end run the Constitution.

But Glenn, the Constitution is not just an evadable speed bump. It is the bulwark of our liberties.[/I

 

[FullMonte]

The DOJ can’t set rules and regulations that circumvent the constitution. The constitution is clear on appointments.

Ok, the constitution is clear on appointments.

Here is what the Constitution says about appointments:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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.

Please take a moment to point out the section of that text that specifically says that Special Counsels must be confirmed by congress.

 

[RobF]

These guys are not impressed with Cannon's opinion: https://www.theguardian.com/comment...has-taken-the-sledgehammer-to-the-rule-of-law

(If anyone wants to quote the most interesting bits of that article, feel free, I'm on my phone right now).

 

[FullMonte]

Something I just thought of, that I haven't seen mentioned anywhere... There is a significant inherent problem with saying that Special Counsels must be approved by the senate, and we only have to go back to 2017 and see that problem.

If Rod Rosenstein appoints Robert Mueller to investigate president Trump's campaign....does the Senate, under Mitch McConnell even have a confirmation hearing for that?

 

[Sendai]

Ok, the constitution is clear on appointments.

Here is what the Constitution says about appointments:



Please take a moment to point out the section of that text that specifically says that Special Counsels must be confirmed by congress.

They are officers of the United States.

 

[Sendai]

Watching the PBS Newshour and they had on former assistant AG Mary McCord. She said, when asked about Smith appealing to the 11th, the DOJ should simply refile the case with a properly approved U.S. Attorney.

 

[FullMonte]

They are officers of the United States.

where does the appointments clause say that a Special Counsel is an officer of the United States?

 

[Sendai]

where does the appointments clause say that a Special Counsel is an officer of the United States?

U.S. Attorneys/Federal Prosecutors are officers of the United States and have been appointed by the president since 1789. Officers of the United States is a term that encompasses a wide variety of roles identified by, over the past 235 years, legislative acts of Congress.

 

[FullMonte]

U.S. Attorneys/Federal Prosecutors are officers of the United States and have been appointed by the president since 1789. Officers of the United States is a term that encompasses a wide variety of roles identified by, over the past 248 years, legislative acts of Congress.

Ok…so, we are getting somewhere. Since 1789 means that it’s not in the constitution. Instead, it means that someone interpreted the Constitution to include Federal Prosecutors.

So, that brings us back to the question I asked. Can you cite the caselaw where an appellate court or the Supreme Court specifically ruled that a special counsel is considered a major officer that needs to be confirmed by the senate? Not a US attorney, but specifically a special counsel.

 

[Sendai]

Ok…so, we are getting somewhere. Since 1789 means that it’s not in the constitution. Instead, it means that someone interpreted the Constitution to include Federal Prosecutors.

So, that brings us back to the question I asked. Can you cite the caselaw where an appellate court or the Supreme Court specifically ruled that a special counsel is considered a major officer that needs to be confirmed by the senate? Not a US attorney, but specifically a special counsel.

A special counsel is a U.S. Attorney. Federal Prosecutor is an U.S. Attorney and U.S Attorney’s are appointed by the president and require senate confirmation.

 

[RobF]

A special counsel is a U.S. Attorney. Federal Prosecutor is an U.S. Attorney and U.S Attorney’s are appointed by the president and require senate confirmation.

You're literally just repeating yourself and ignoring the question: "Can you cite the caselaw where an appellate court or the Supreme Court specifically ruled that a special counsel is considered a major officer that needs to be confirmed by the senate? Not a US attorney, but specifically a special counsel."

If your answer is, "No, I can't," just say that. There's no point repeating unsourced assertions.

Previously, as I understand it, the nature of a special counsel appointment has been regarded as that of an "inferior officer" under the constitution, as in Morrison v. Olson for example. For your assertions to have substance, you need to show that isn't the case. Not just repeat yourself.

 

[DaveXA]

A special counsel is a U.S. Attorney. Federal Prosecutor is an U.S. Attorney and U.S Attorney’s are appointed by the president and require senate confirmation.

Source or it's just your opinion and nothing more. As RobF stated above, cite the case or cases that support your assertion.

 

[Sendai]

You're literally just repeating yourself and ignoring the question: "Can you cite the caselaw where an appellate court or the Supreme Court specifically ruled that a special counsel is considered a major officer that needs to be confirmed by the senate? Not a US attorney, but specifically a special counsel."

If your answer is, "No, I can't," just say that. There's no point repeating unsourced assertions.

Previously, as I understand it, the nature of a special counsel appointment has been regarded as that of an "inferior officer" under the constitution, as in Morrison v. Olson for example. For your assertions to have substance, you need to show that isn't the case. Not just repeat yourself.

Ok if you think Smith is an inferior officer then

“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.”

There currently is no federal statute giving the AG the appointment power. That last piece f legislation for that purpose expired in 1999.