Trump Indictment ( includes NY AG and Fed documents case ) (2 Viewers)

[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]

...you're mistaken interpretation.


The bold part implies the opposite of what you are inferring. You're interpreting that statement as if it says this:

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"the US Attorney shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney."​

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If the Special Counsel was the equivalent of any US Attorney it wouldn't be necessary to specify that a Special Counsel has the same functions as any US Attorney.

The fact that they have to spell out that the Special Counsel has the same functions as a US Attorney, actually shows that the Special Counsel is not considered a US Attorney as defined by the law.

The rest of what you said is irrelevant, because the Special Counsel is not a US Attorney as defined by the law.

I’m interpreting that the DOJ is creating, in effect, a U.S. Attorney without presidential or legislative appointment. Only congress can create an office with the powers of a U.S. ATTORNEY. Its why they did it with the Independent Counsel legislation that expired in 1999. There is no legislation that gives the DOJ the authority to create an office with that power.

 

[LA - L.A.]

I’m interpreting that the DOJ is creating, in effect, a U.S. Attorney...

Your interpretations are all dead wrong and I'm convinced you know that they are. The Special Counsel serves similar function as a US Attorney, but is not a US Attorney. If they were a US Attorney, they would be called a US Attorney and not a Special Counsel.

Want to know the difference between the two? Special Counsel serves on a temporary basis and only on one specific investigation/case. A US Attorney is appointed to handle all investigations/cases in a district on a long term basis. That's what makes them different.

Continue to choose to be obtuse if you want to. It's your prerogative.

Its why they did it with the Independent Counsel legislation that expired in 1999.

Just how dishonest do you want to keep being? You've been shown several times that a new law that allows for Special Counsels has been enacted since 1999. You keep intentionally mixing up and confusing several different laws while making false statements about them.

You are such an incessantly dishonest person. By the way, you never said how close you are to Kent.

 

[RobF]

Just how dishonest do you want to keep being? You've been shown several times that a new law that allows for Special Counsels has been enacted since 1999. You keep intentionally mixing up and confusing several different laws while making false statements about them.

I think, technically, it was new regulations, that drew their authority from existing laws. From the essay I linked before:

On June 30, 1999, Attorney General Reno promulgated the regulations that currently govern Special Counsels “selected [by the Attorney General] from outside the United States Government.” 28 C.F.R. § 600.3. Reno announced that she did so “by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510.” 64 Fed. Reg. 37,038, 37,042 (July 9, 1999). The prospect of creating such a regulatory special counsel regime in lieu of the Independent Counsel statute was the subject of a great deal of attention in Congress both before and after Attorney General Reno acted. Yet, as far as I know, no one in Congress (or elsewhere) so much as mentioned any issue, let alone expressed any doubts, about the Attorney General’s statutory authority to promulgate such regulations, or to hire a Special Counsel from outside the government with the power to prosecute criminal cases.Two months later, in September 1999, Attorney General Reno made the first selection under the new regulations: She appointed Jack Danforth to be a Special Counsel to investigate possible misconduct on the part of federal law enforcement personnel in connection with the Branch Davidian incident near Waco, Texas. Under the regulations Reno had issued that June—the same regulations that also govern Special Counsel Smith—Danforth had the “full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R. § 600.6.​

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[LA - L.A.]

I think, technically, it was new regulations, that drew their authority from existing laws. From the essay I linked before:

On June 30, 1999, Attorney General Reno promulgated the regulations that currently govern Special Counsels “selected [by the Attorney General] from outside the United States Government.” 28 C.F.R. § 600.3. Reno announced that she did so “by virtue of the authority vested in me as Attorney General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510.” 64 Fed. Reg. 37,038, 37,042 (July 9, 1999). The prospect of creating such a regulatory special counsel regime in lieu of the Independent Counsel statute was the subject of a great deal of attention in Congress both before and after Attorney General Reno acted. Yet, as far as I know, no one in Congress (or elsewhere) so much as mentioned any issue, let alone expressed any doubts, about the Attorney General’s statutory authority to promulgate such regulations, or to hire a Special Counsel from outside the government with the power to prosecute criminal cases.Two months later, in September 1999, Attorney General Reno made the first selection under the new regulations: She appointed Jack Danforth to be a Special Counsel to investigate possible misconduct on the part of federal law enforcement personnel in connection with the Branch Davidian incident near Waco, Texas. Under the regulations Reno had issued that June—the same regulations that also govern Special Counsel Smith—Danforth had the “full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R. § 600.6.​

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Thanks for the correction and clarification that it's a regulation based on still existing laws. The law that expired in 1999 keeps getting brought up as a red herring to create the false impression that there is no longer any legal basis for the Attorney General or Acting Attorney General to create a Special Counsel for a specific investigation/case.

 

[FullMonte]

So here’s the problem with 28cfr600. It is not congressional legislation and it specifies “the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” So the Special Counsel is by this definition a United States Attorney. Only Congress can create United States Attorneys, not the DOJ, and United States Attorneys must be appointed by the President. So, the DOJ, through a DOJ regulation is attempting to create a United States Attorney through the back door without presidential appointment.

28 CFR § 600.6 - Powers and authority.

www.law.cornell.edu

Why do you keep ignoring the other part.

Can you point out ANY officer that is required to be appointed by the president and confirmed by the Senate, who can be fired (not impeached by congress) by anyone other than the president?

 

[Sendai]

Why do you keep ignoring the other part.

Can you point out ANY officer that is required to be appointed by the president and confirmed by the Senate, who can be fired (not impeached by congress) by anyone other than the president?

If the office is improperly appointed it doesn’t matter that the AG can fire them for cause. Oddly can’t be fired at will.

Another bit of information.

28 u.s.code 533 applies to staffing the FBI not United States Attorneys.

28 U.S. Code Chapter 33 - FEDERAL BUREAU OF INVESTIGATION

www.law.cornell.edu

A bit too cute in rationalizing authority to create a role that is effectively a United States Attorney.

 

[bird]

If the office is improperly appointed it doesn’t matter that the AG can fire them for cause. Oddly can’t be fired at will.

Another bit of information.

28 u.s.code 533 applies to staffing the FBI not United States Attorneys.

28 U.S. Code Chapter 33 - FEDERAL BUREAU OF INVESTIGATION

www.law.cornell.edu

A bit too cute in rationalizing authority to create a role that is effectively a United States Attorney.

Effectively is not the same as is.

 

[FullMonte]

If the office is improperly appointed it doesn’t matter that the AG can fire them for cause. Oddly can’t be fired at will.

I'm a fairly low level federal government employee who works for the Dept. of Defense. Guess what? I can't be fired at will either. I can only be fired for cause.

But, again, you ignore the question I asked.

Can you identify ANY officer that is required to be appointed by the president and confirmed by the senate that can be fired (not impeached) by anyone other than the president?

A bit too cute in rationalizing authority to create a role that is effectively a United States Attorney.

EFFECTIVELY a United States Attorney? So, they are NOT a United States Attorney? Therefore, any legislation that specifically applies to a United States Attorney does not specifically apply to them?

 

[MT15]

I don’t understand why the difference isn’t clear to all here. It’s obvious, even to me. I think it may be wishcasting, actually.

 

[Sendai]

I'm a fairly low level federal government employee who works for the Dept. of Defense. Guess what? I can't be fired at will either. I can only be fired for cause.

But, again, you ignore the question I asked.

Can you identify ANY officer that is required to be appointed by the president and confirmed by the senate that can be fired (not impeached) by anyone other than the president?



EFFECTIVELY a United States Attorney? So, they are NOT a United States Attorney? Therefore, any legislation that specifically applies to a United States Attorney does not specifically apply to them?

Courts might view that differently. By describing the job as effectively the power of a United States Attorney, if looks like A duck, quacks like a duck, waddles like a duck, it’s a duck. Wouldn’t be difficult to see it as a back door way to create a United States Attorney without the proper appointment. Along the lines of what Cannon found and likely what the Supreme Court would find. But hey, if I were the AG I’d just give the case to the presiding District Attorney and be done with it.

 

[LA - L.A.]

Courts might view that differently. By describing the job as effectively the power of a United States Attorney, if looks like A duck, quacks like a duck, waddles like a duck, it’s a duck.

The courts in several cases have already reinforced that the AG or Acting AG have legal authority to create a Special Counsel. You know that, but you keep choosing to act like you don't know that.

Wouldn’t be difficult to see it as a back door way to create a United States Attorney without the proper appointment.

Not at all. A Special Counsel only has authority in one specific case/investigation. They can not work on more than that one investigation/case. They are like an office temp brought in to help complete a specific project.

An actual US Attorney is someone permanently appointed/hired to work all investigation/cases in the district they are assigned to, they can be reassigned anywhere and they can be promoted up the hierarchical chain of the Justice Department. None of that is true for a Special Counsel.

Are you going to keep acting like you don't understand this?

 

[FullMonte]

Courts might view that differently. By describing the job as effectively the power of a United States Attorney, if looks like A duck, quacks like a duck, waddles like a duck, it’s a duck. Wouldn’t be difficult to see it as a back door way to create a United States Attorney without the proper appointment. Along the lines of what Cannon found and likely what the Supreme Court would find. But hey, if I were the AG I’d just give the case to the presiding District Attorney and be done with it.

Why do you keep ignoring the question I asked?

Can you name any officer that needs to be appointed by the president and confirmed by the Senate who can be fired (not impeached by congress) by anyone other than the president?

 

[efil4]

 

[Sendai]

I don’t understand why the difference isn’t clear to all here. It’s obvious, even to me. I think it may be wishcasting, actually.

Congress created the office of the United States Attorney.

Where is the Congressional legislation that gives the Attorney General the power to create an office with the power of a United States Attorney?

 

[LA - L.A.]

Where is the Congressional legislation that gives the Attorney General the power to create an office with the power of a United States Attorney?

This is a misleading and deceptive question and you know it. A Special Counsel is not "an office with the power of a United States Attorney" and you bloody well know that.

Congress gave the Attorney General or Acting Attorney General the power to create a Special Counsel who, specifically to one single issue/investigation/case only, has temporary functions to investigate and bring that case and only that case to trial. Once that issue/investigation/case is concluded, the Special Counsel no longer exists. Unlike an actual US Attorney, who is appointed on a permanent basis to investigate and bring cases to trial for the whole time that they are a US Attorney.

 

[Sendai]

This is a misleading and deceptive question and you know it. A Special Counsel is not "an office with the power of a United States Attorney" and you bloody well know that.

Congress gave the Attorney General or Acting Attorney General the power to create a Special Counsel who, specifically to one single issue/investigation/case only, has temporary functions to investigate and bring that case and only that case to trial. Once that issue/investigation/case is concluded, the Special Counsel no longer exists. Unlike an actual US Attorney, who is appointed on a permanent basis to investigate and bring cases to trial for the whole time that they are a US Attorney.

Nothing misleading about this.

“the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”

That is an office with the power of a United States Attorney. And absent specific legislation only Congress has the power to create such an office.

 

[LA - L.A.]

Every time you try to deflect the conversation away from the fact that the evidence has Trump dead to rights on violating the Espionage Act and obstruction of justice, you actually remind everyone that Trump definitely broke the law by taking, keeping and hiding documents that belonged to the US government.

Even you can't bring yourself to try to be deceptive about the fact that the evidence clearly shows Trump broke the law. Now let's address the false claims you keep deceptively making.

Nothing misleading about this.

It's misleading and you know it's misleading which is why I know you are intentionally being deceptive. You cherry pick and quote things out of context all the time. You're not honest and it's intentional.

“the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”

That's not the entirety of what you are quoting and you know it's not. You know that entirety of what you are deceptively quoting makes it very clear that the Special Counsel only has investigative and prosecutorial functions on a temporary and one issue/case basis.

They can only be created to investigate and prosecute a single issue, case and/or trial. Once they have concluded the investigation and prosecution of that one issue, they no longer have any functions at all of a US Attorney. That's why they are not a US Attorney.

You know that's true and you pretend like it's not. You keep repeating these things you know to be false, because you are desperately trying to keep people from talking about the fact that everyone knows the evidence irrefutably shows that Trump broke the law.

You're doing on this board what every defense attorney does in court when they know the evidence has their client dead to rights, they start trying to confuse the jury and bog the trial down with nonsense procedural motions.

 

[RobF]

Why do you keep ignoring the question I asked?

Can you name any officer that needs to be appointed by the president and confirmed by the Senate who can be fired (not impeached by congress) by anyone other than the president?

Sendai appears to routinely ignore points that they can't address.

Same way they ignore the meaning of the qualifying statement, "within the scope of his or her jurisdiction", as well as the preceding statement they omit entirely, "Subject to the limitations in the following paragraphs", when they're quoting 28 C.F.R. § 600.6.

Fact is, and I'll just quote from the essay linked previously to save typing it out myself:

The Attorney General had statutory authority to hire Jack Smith to work in the Department of Justice pursuant to 5 U.S.C. 3101 (affording each Executive agency the power to hire employees, defined to include officers, id. § 2105(a)). See also 28 U.S.C. §§ 503, 509 (designating the Attorney General “the head of the Department of Justice” and vesting the Attorney General with the authority to perform virtually all DOJ functions, which includes hiring)​

That covers hiring. And for delegation of authority:

Section 509 provides that, with discrete exceptions not relevant here, “[a]ll” DOJ functions “are vested in the Attorney General,” even where another statute specifically assigns a particular function to other DOJ officials (such as 28 U.S.C. § 547(1), which authorizes U.S. Attorneys to prosecute offenses against the United States). Therefore, the Attorney General himself may supervise a criminal investigation and prosecution. ...​

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Section 510, in turn, provides the Attorney General a virtually unlimited power to delegate those authorities. It provides that the Attorney General “may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” (Congress has vested the Attorney General with such a broad delegation power since at least 1950. See Reorganization Plan No. 2 of 1950, § 2, 64 Stat. 1261, 1261.) This means that the Attorney General may assign the functions of criminal investigation and prosecution of a particular case—powers he may personally exercise, per Section 509—to any other officer, employee, or agency of DOJ.​

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So the AG can, unsurprisingly, hire someone and delegate the necessary authority to them.

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And the multiple problems with the argument that the AG can't create an office include the fact that:

... as the Supreme Court reiterated in Lucia v. SEC (2018), such an individual occupies an “office,” and is thus an Appointments Clause “officer,” only if two conditions are met:​

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(i) The individual is empowered to “exercise[] significant authority pursuant to the laws of the United States”; and​

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(ii) She occupies “a ‘continuing’ position established by law” within the U.S. government.​

But it's not a "continuing position established by law"; Smith is hired only for a specific task, and there is no formal DoJ role that would be filled if he resigned, there's no "Office of Mar-a-Lago Investigating", there's no such language in his appointment. So it's, at the very least, questionable whether the Appointments Clause is relevant at all.

But, even if we assume that's not the case, the AG has the authority to create DoJ positions that meet the conditions for an Appointments Clause office anyway:

In any event, the Attorney General does have statutory authority to create a new DOJ position that meets the conditions for an Appointments Clause “office.” Once again, the primary source of that authority is 28 U.S.C. § 510, which provides that the Attorney General “may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” This broad delegation authority, together with the general authority of the head of every Executive Department “to prescribe regulations for the government of his department [and] the distribution and performance of its business,” 5 U.S.C. § 301 (emphasis added), not only empowers the Attorney General to delegate the exercise of his authorities to another DOJ officer, employee, or agency in a discrete, particular case (“from time to time” in the usual DOJ parlance), but also to create continuing positions in DOJ that are to be filled by individuals whose duties are to exercise such delegated functions.​

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For example, in 1973, before Congress had created the U.S. Marshals Service, Attorney General Richard Kleindienst established an office of the “U.S. Marshals Service” within DOJ. Kleindienst appropriately cited, inter alia, Section 510 and Section 301, as the basis for the creation of that office because the persons occupying the office were assigned to perform functions delegated from (and by) the Attorney General. See 38 Fed. Reg. 12,917 (1973). Several years later, in referring to this Attorney General creation of the “Marshals Service,” the Office of Legal Counsel cited Section 510 in explaining that “Congress has by statute vested the Attorney General with the authority to take certain measures, including the creation of inferior offices within the Department of Justice, to carry out the functions of his office.” Applicability of Appointment Provisions of the Anti-Drug Abuse Act of 1988 to Incumbent Officeholders, 12 Op. O.L.C. 286, 288 n.5 (1988) (emphasis added).​

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There are other examples of this given, for example, including the establishment of "the Office of Watergate Special Prosecution Force" in 1973, the "Office of Independent Counsel: Iran/Contra" in 1987, and more.

But really none of this should be necessary; the premise we're being asked to consider here is, to boil it down, that the AG hasn't had the authority to hire and delegate power to employees such as special counsels for decades and literally no-one noticed this until now despite multiple rulings considering such appointments. In ordinary circumstances, I would suggest that Cannon's ruling has pretty much zero chance of holding up on appeal.