My initial reaction after reading the salient portion of the opinion was to call it “goofy,” which was about as inoffensive a characterization as I could muster. There was a question raised at the inception of the Trump classified documents case whether Special Counsel Jack Smith knew what he was doing when he made the call to prosecute the case in the Southern District of Florida, West Palm Beach Division, where the only judge sitting in the courthouse was Aileen Cannon, the same Trump appointee who had already disgraced herself by collaterally staying the review of evidence seized by the search warrant, which was not a “thing.”
I tried. Oh lord, I tried to give Judge Cannon the benefit of the doubt. Maybe she was just inexperienced. Maybe she just wasn’t all that bright. Maybe she was trying to be as meticulous as possible after the Eleventh Circuit ripped her a new one for her monumentally bizarre ruling in the search warrant proceeding. Or maybe her bench was the quid to Trump’s quo.
Judge Cannon dismissed the classified document prosecution on the basis that the special counsel appointment and funding was unconstitutional. No less a trusted authority on matters legal than Matt Gaetz summed up the rationale in a single sentence.
Neal Katyal, who was involved in drafting the Special Counsel regulations when he was with the Justice Department, was a little more wordy in criticizing the decision.
Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.
There is law.
Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant[s] to the attorney general or special attorney[s].” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.”
Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.”
There is precedent going back to Nixon.
We had exactly that situation in Watergate. A special prosecutor, Leon Jaworski, sought President Richard Nixon’s Oval Office tapes. Nixon claimed that the prosecutor could not force the release of the tapes because it was an “intra-branch dispute” where the president’s decision was “final.” The Supreme Court, in a unanimous decision, United States v. Nixon, pointedly rejected the claim, saying “Congress has vested in the attorney general” the power to conduct criminal investigations of the government and “vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.” And what laws did the court cite? The very same statutes, Sections 515 and 533, that Mr. Garland cited when appointing Mr. Smith.
“Acting pursuant to those statutes,” the Supreme Court continued, the attorney general “has delegated the authority to represent the United States in these particular matters to a special prosecutor with unique authority and tenure.”
Judge Cannon dismissed the Supreme Court precedent as “dicta,” an aside unnecessary for the holding. It’s nonsensical. Cannon strains to make the case that the authority to appoint a special counsel was dicta in Nixon, and fails miserably. Even if Cannon thought her argument to be correct, her course was to raise her issues, but then apply the precedent so that the Supreme Court could clarify whether her position was correct or not. It is not for a district judge, even one lacking the taint Cannon brought upon herself, to conclude that the Supreme Court’s decision didn’t mean what it said and could therefore be ignored.
Of course, what this inane decision accomplished was to provide a plausible claim that Trump was innocent of this crime despite overwhelming evidence, that Trump was the perpetual victim of lawfare and that nothing could be done to reverse this goofy decision before the election. If Trump loses, of course, there will be time to reverse and remand to a competent judge, but at the moment, Biden seems to be doing everything in his power to assure Trump’s victory.
Trump partisans will no doubt applaud this ruling because it helps their guy. Trump haters will no doubt despise this ruling because it helps Trump. But if, for the briefest of moments, you can put aside feelings about Trump and consider the ruling as it would apply to, oh, Nixon, or Clinton, or Hunter Biden, or Papa Joe, what should be done about it? What should be done about Cannon, who has now eliminated all doubt about whom she serves?
*Tuesday Talk rules apply, but I will be riding comments hard here. As an old Nebraska judge once said, “FOCUS.”
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Man, anyone who knows Johnny Winter’s music immediately has my respect!! If you’re feeling even a tinge of optimism during these insane times maybe SJ will let you post a link to “Still Alive and Well”??
Did you ever take a look to see whose left around
Everyone I thought was cool is six feet underground
They tried to get me lots of times but now they’re coming after you
I got out and I’m here to say baby you can get out too
I’m still alive and well still alive and well
Every now and then I know it’s kinda hard to tell
But I’m still alive and well
Still alive and well, still alive and well
Every now and then I know it’s kinda hard to tell
But I’m still alive and well
Johnny is one of my guitar heroes, saw him live a few times.
Written for him by his friend Rick Derringer:
P.S. – Johnny died exactly ten years ago, July 16, 2014.
You are dead right in your commentary. Unfortunately the Republic is now dead because of this judge’s bias and incompetence and SCOTUS’ incredulous ruling putting Donald Trump so far above the law as to make the law irrelevant to him. SCOTUS protected Donald Trump and Clarence Thomas’s protected Judge Cannon.
The law is no longer the law if you’re Trump or rich enough to buy judges and/or the Supreme Court. Perhaps that was the intent of the Founding Fathers all along!? Perhaps CJ Roberts should opine on that thought as an ‘originalist’.
The decay of the US Imperial Republic into being officially a decaying empire is as inevitable as was that of the Roman Republic into the expanding Roman Empire.
Duke University
University of Michigan Law School
Law clerk for Steven Colloton, a judge on the United States Court of Appeals for the Eighth Circuit Associate at the Washington, D.C., office of the corporate law firm Gibson Dunn.
Assistant United States attorney for the Southern District of Florida.
I think you can rule out incompetence. You will have to rely on one of the less flattering explanations.
Every year, some number of judges blow off the law in disposing of cases. It has yet to completely nullify the law or bring down the republic, and it won’t this time either.
You hung in there so well and so long, so it’s sad to see you drop the ball now. Judge Cannon has done much worthy of criticism, and the reasons for her missteps and errors are likely some combination of those you mention. But I don’t see this ruling as her shark-jumping moment.
You think that Judge Cannon didn’t correctly decide that Nixon was dicta. Fine. But Judge Cannon is far from alone in thinking that the single-sentence ‘discussion’ of appointment power in Nixon was dicta. If it’s dicta, then she isn’t bound by it—even though SCOTUS dicta is to be treated differently than regular circuit dicta (or something, something, something that comes close to “do as I say, not as I do—except sometimes when I didn’t really mean what I said”).
What I find strange is your insistence that Judge Cannon should have raised her issues with Nixon but then held her nose and followed some part of a case that she thinks isn’t a holding and thinks is wrong until such time as SCOTUS deigns take up the issue. Do we want judges following not what they think is the law but rather what they think others think is the law? Also, isn’t it better from a system-design perspective to have issues with someone’s authority to prosecute a criminal defendant decided before the criminal defendant is prosecuted? (Plus, once CT showed his hand in Trump v. USA on this issue, you had to know that Judge Cannon was going to rule that Jack Smith was unconstitutionally appointed.)
You make a good point about what will be made of this decision by Trumpers. So what? Trumpers are gonna Trumper. Let’s face it: Trumpers’ comments (on anything) aren’t constrained by facts or reason. That’s not a reason for Judge Cannon (or any judge) to not follow through and do what they think the law compels them to do.
Where does this leave us on the Nixon, Clinton, Hunter, and Papa Joe front? Nixon and Clinton don’t matter (for different reasons): Nixon because he didn’t raise the issue; Clinton because a different statutory scheme existed at the time. But for Hunter and Papa Joe, the answer is the same as Trump: if the Attorney General lacks the power to appoint Special Counsel like Jack Smith, then the Attorney General lacks the power to appoint Special Counsel like David Weiss and Robert Hur. Now the real question: did Hunter preserve this issue in his case?
Cannon was (and is) completely alone in thinking it was dicta.
Judges ignore the law to reach the result they want – if in fact that is what the judge did here – all the time. Constantly. Never against the government, though. Is that the complaint here?
Constantly? You don’t sound like a hysterical nutjob.
“It is not for a district judge . . . to conclude that the Supreme Court’s decision didn’t mean what it said and could therefore be ignored.”
Right. Like just about every gun case since Heller, MacDonald, and more recently Bruen.
But more directly relevant to Judge Cannon, it’s entirely normal for judges (and attorneys) to analyze opinions and determine which parts are holding and which dicta, to the extent that you seem to be off-base in criticizing her for doing so. It’s one thing to say she answered the question incorrectly; it’s quite another to say she was out of line for trying to answer it in the first place.
The Supreme Court can reverse its own precedent, which was consistent over the past 50 years. A district judge cannot.
Not being a lawyer, I can’t speak to how far district judges can go in their rulings and analysis. But if there’s one thing Cannon should have taken from the bench-slapping she got over her ludicrous special master ruling, it’s that she was extremely inexperienced and completely in over her head, and as such she should be very careful in making any earth-shattering decisions in a case of this magnitude. Instead, she went full Leroy Jenkins, doing the judicial equivalent of a new hire nuking the company shared drive because they read in their training packet that you shouldn’t keep some documents past certain dates. She had copious opinions from people with infinitely more experience than she had and who actually knew what the hell they were doing, and in her 4 hours of federal trial experience, decided to ignore them completely and throw out Supreme Court precedent. That’s insane.
Are you a masochist? You knew this would draw out every looney around, and yet you did it anyway. I usually try to do my part to not let commenters make people stupider, but judging from the comments you’ve already received, this is a lost cause. May god have mercy on your soul.
But if, for the briefest of moments, you can put aside feelings about Trump….
LOL, this after ranting at length about his feelings on Trump…”quid to Trump’s quo”
No less a trusted authority on matters legal than
Matt GaetzJustice Clarence Thomas…or did you not read his dissent? No doubt you read Jackson’s dissent and her not so subtle hint to Jack Smith
you’re part of the problem, cupcake, not that self-awareness was ever a skill set of Democrats
You obviously have no clue who you’re talking about. That said, no one joined in Justice Thomas’ concurrence. Not one other justice. Can you guess why, cupcake?
Thomas wrote a concurrence, not a dissent. If you want to play smart ass, then at least try to get your facts straight, cupcake.
I am not so sure Judge Cannon’s opinion is wrong. I assume you have read the Amicus Brief filed by Professor Seth Barrett Tillman and the Landmark Legal Foundation in the case.
Scott reads Josh Blackman, so it’s safe to assume that he’s read the Tillman brief. Just because you can find an outlier attorney to support an outlier position doesn’t mean that it’s right, and Tillman/Blackman are about as outlier as it gets in the legal academy, although Calabresi is giving them a run for it.
I’m friends with both Josh and Seth. Cannon’s decision did not follow the argument they made as amicus.
A story about the great game theory expert John von Neumann comes to mind here. One night, von Neumann was playing poker and ended up losing very quickly with some very strange bets. His students were puzzled, so they questioned him about his strategy. von Neumann reportedly said, “You thought I wanted to win; I just wanted to go home.”
It may be the case that Judge Cannon wanted to ditch this case, and it was too late for her to recuse herself. Thus, an otherwise shoddy dismissal decision—and arguendo, let’s agree that this is one—can be explained by, “You thought I wanted to write good law; I just wanted to go home.”
That doesn’t make it any better.
She can always recuse herself and go home rather than writing a dubious opinion ignoring precedent.
In an era of “at all costs” partisanship, it should not be shocking to find partisan influences impacting the courts. Maybe this was a judge doing a good turn for a pol that tapped her for a lifetime post. Maybe she just thought more generally that the lawfare should be nullified so far as any effect on the pending election, and this decision, right or wrong, was a useful, tactical means to that end. Something, of course, had to be written to convey the court’s result, but it really needn’t be persuasive. Certainly not the first time a court has reached an outcome more consistent with its unique truth than with the conventional wisdom of precedent.
Every great movie uses the “hero’s journey” formula which necessarily includes a “dark night of the soul” during which the hero suffers trials and tribulations which appear to be insoluble. For example, in “The Count of Monte Cristo” our young, naive hero falls into a trap and winds up in prison, and it appears that his life is over. Then he goes through a long period of suffering through difficult conditions, during which he gains wisdom, courage, strength and skill. When his DNOTS is over, his fortunes change and everything he touches turns to gold. For example, when he and his friend Jacopo show up at a huge estate with a wagon full of treasure, the owner agrees to sell it. This would never work in real life; a man with a huge estate would also have men-at-arms and they would take the treasure and kill the two presumptuous fools who sought to purchase a powerful man’s estate with trinkets. But logic and reason are not part of the hero’s journey. After the DNOTS, the hero is destined for triumph, and he cannot lose.
Similarly, the attempted assignation of Trump marked the end of his DNOTS. Whereas previously he staggered from calamity to disaster, beset on every side by enemies, now all his troubles will vanish and he will triumph. We will see that he has learned from adversity, and the brash, thoughtless TV star and billionaire has become thoughtful, wise and humble; he now embodies the ideal of Presidentiality. Lawfare cases will be dismissed, and cases already won against him will be overturned. The law is irrelevant; what matters is the narrative. The story will end with our triumphant hero striding into the White House to the cheers of multitudes, and then the next drama will begin.
Usually, where there is a single criminal case, out of thousands on any given day, where the defendant gets a favorable ruling from the judge, the defense bar says, “Hooray!” Others say, “I hope it sticks on appeal.” Still others might say, “I doubt it will stick, but, at least, there is one judge who stood up for the rights of the accused.” But not on this here blog. “It’s so sad.”
Right, this has nothing to do with Trump and Cannon is just a defendant friendly judge.
I apologize for all the comments, but today’s TT just got too stupid for me to take. Then again, Miles is right. You knew this would happen.
This is a sad day in this here Hotel. There probably isn’t a better place for legal minds, thoughtful ones, to vent. Some of you turned it into Shitville. Congratulations to your dumbassery.
The thing about ignorance is it’s perpetual. It doesn’t end. No matter how much effort is put into the education, ignorance stays that way. Somehow, it’s especially true when the education is provided by people that know what they’re talking about, and to people that think they do, but don’t. It just doesn’t get through.
Scott–I’ll meet you in the bar. Scotch and bone-in filet. It won’t wash this away, but it’ll be good.
Judge Cannon is apparently a loose cannon. Am I really the first to cross this demented mind? Pardon my disarticulation. I did go to college, but that was a very long time ago. We have subsequently forgotten almost everything we supposedly learned. Ahem.
A loose cannon can shift on the deck and shoot in an unexpected direction, endangering members of its own ship’s crew. If we accept the premise that Judge Cannon’s decision was based on partisan or personal loyalty, then she is the opposite of a loose cannon. She is a very tight cannon, securely fastened to the deck, and is guaranteed to always shoot in the “right” direction.