Prior to this decision, those of us who have been following this case closely were close to unanimous in the view that Judge Cannon was in over her head, based on case management style and courtroom demeanor. Now we also know that she is out of her mind. I will write more about it in my Substack blog, Grifter News.
Perhaps you should wait until it gets tried in higher court. Come back then and apologize as this ruling will stand.
We are getting back to a constitutional Republic that we used to be. The next 12 years (at minimum) of Republican (populist) control will trim the sails of the crazy leftist ideas. And appoint few more constitutional judges to the SCOTUS. Life will be good.
With the Caveat that I have not read a single one of those 93 pages...
I've defended Judge Cannon in these comments before, assuming good faith. Now, I fear that defense was unwarranted.
Very mixed feelings here. Seems like a denial (of the MtD) with leave for an interlocutory appeal would have been better politically (even if it aggravates those who want the trial before the election/inauguration) if she truly in her heart-of-hearts believes in this is the correct legal outcome. But at a certain point when you keep being the hand-of-god in the proceedings around you, you lose all credibility.
I am disappointed for the state of our union as it pertains to our Article 3 institution.
With the same caveat that I am relying on this summary and have not read the opinion, this does not at all strike me as bonkers. It seems rational, especially on the point that past history tells us absolutely nothing useful given the all over the lot approaches and the fact that the only explicit Congressional authorization for something like this no longer exists. This was a workaround by DOJ to the loss of the Independent Counsel authorization, and it seems to me a fair question of whether it is consistent with the Constitution. Happy to look at the forthcoming analytical, as opposed to results-oriented or political, critiques, and certainly willing to be convinced, but at least on first blush, this certainly seems a plausible analysis.
Smith's basic arguments were that even in the absence of any statutory language barring his appointment, the same was within the discretion of an AG, and that his appointment was no different than any other officer appointed by an AG despite the language of both relevant constitutional clauses
I just finished reading Judge Cannon's decision. I don't think it is bonkers at all. She may be wrong, and I am waiting to hear the views of those who are qualified to opine on her reasoning, but it is a well reasoned decision, and should be taken seriously.
I served as an Associate Independent Counsel for Ken Starr. During Whitewater, attorneys for then-Arkansas Governor Jim Guy Tucker succeeded in getting a district judge in Little Rock (who happened to have been a Clinton pal and donor) to dismiss an indictment on the ground that AG Reno exceeded her authority to refer that matter to the IC. We appealed successfully to CTA8 and also got the case reassigned due to the judge's bias. It's interesting that the statutory IC was challenged as violating the separation of powers because Congress put the appointment power in the judiciary branch and limited the Executive's removal power, whereas here the argument is that Congress should have enacted an IC statute to authorize Smith's appointment. I agree that Cannon was very careful and canny (no pun intended) to cite so many Justices' opinions and writings (including several predating their judicial service). This is called "teeing up the ball." Whether SCOTUS will swing remains to be seen but I suspect this will be reversed by CTA11 at a minimum.
But unlike that appointment, this one could be taken up by SCOTUS. Her opinion is well-reasoned, and I think the sticking point for reversal would be the remedy for a violation. Could this not be simply transferred to the Miami US Attorney's Office for handling?
I read the opinion and am sympathetic. It's hard to come up with a clear legal basis for the DOJ to give a non-DOJ employee the authority that they gave Smith.
I get that people want Trump punished, and he sure looks guilty, but if the prosecutor doesn't have legal authority, then he doesn't.
Basucally, Cannon ignores law and precedent and prior court rulinsg that cut against her decision and then pretends she is writing on a blank slate. She dismisses contradictory language in US v Nixon disingenuously.
She had a place she wanted to go in this opinion, and she carefully ignored or dismissed whatever would have stopped her from getting there. That's... not judging.
Finished reading the opinion, and it is a piece of work. It’s hard to believe that she hadn’t waited for oral arguments to close before she began drafting the opinion. (If she did start 21 days ago, she would have had to research and draft eight pages a day, including weekends.) Any precedent that she disliked was inapplicable or mere dicta. Or the appellate courts didn’t do their own research to anticipate her future interests in motivated reasoning. She didn’t mind citing a DC District Court opinion but ignored a DC Circuit Court on point. I would not be surprised at all to learn she had the assistance of some non-party in preparing this.
I am not an attorney, so I'll let those more qualified opine on whether this opinion is correct or not. Purely on its face, this doesn't seem like a frivolous issue at all.
As an observer, though, I am very disappointed to see everyone just dogpiling without addressing the opinion at all. This entire comment thread is a massive series of Ad Hominem attacks with no actual reasoning. It's sad to see.
One thing I'm wondering about: might the Supreme Court revisit Morrison v. Olson?
The Scalia dissent in that case is regarded by many conservatives as a superb—and analytically correct—opinion. It's cited favorably in both Judge Cannon's opinion in the documents case and Justice Thomas's opinion in the Trump immunity case.
I don't know that an appeal in this case would require SCOTUS to revisit Morrison. But I think that if they wanted to do so, this case could be a vehicle for doing so.
Yes, under the Ethics in Government Act. But its reasoning - and the reasoning of Scalia's dissent, if that becomes the majority view - might be applicable to Special Counsels as well.
As a non-lawyer, I would like to understand: Does this actually matter? What is to prevent Garland’s DOJ from re-filing the same indictment in a few days after a Senate-confirmed lawyer has been adequately briefed on the investigation to date?
I suppose so, but 1) it would have to go through Congress... and the current composition of the House means it's unlikely; and 2) it would take quite a bit more than "a few days" to adequately brief any new lawyers to the point where they could direct this case.
All I can think of is all that classified information... and Cannon just handed it to Putin. (As much of it as he doesn't already have, that is.)
I am not a lawyer, much less a constitutional scholar. But this ruling seems a bit out of bounds. From what I've seen, trial courts generally take the law as valid, and rule accordingly. It's up to the circuit courts to rule, on appeal, that the law used as a basis for prosecution is unconstitutional.
This is not accurate. The trial court's role is to apply the law, subject to the binding precedent of its superior courts. If the circuit court (or SCOTUS) has not ruled on the issue before a trial judge, that judge is to rule on the case before it as they think appropriate, subject to the applicable standards of review.
I think she is right. Congress let the Special Counsel law lapse because much to the democrats surprise it was used against a democrat. Congress could have renewed the law or they could have modified the law. The justice department under Janet Reno and others acted as if they had authority to appoint these Special counsels. It is interesting that a 90 plus year old former Attorney General who never went to law school was among those that pointed out the problem.
Janet Reno appointed Independent Counsels under the independent counsel statute which remained in effect until the tail end of her time in office.
Attorneys general both before during and after the passage and lapsing of the IC statute have appointed special counsels under the same statutory authority used by Garland to appoint Smith. Nixon's AGs, Ed Meese (whose opinion has since flipped), Bill Barr as HW Bush's AG, Rod Rosenstein, Bill Barr as Trump's AG, Merrick Garland.
Prior to this decision, those of us who have been following this case closely were close to unanimous in the view that Judge Cannon was in over her head, based on case management style and courtroom demeanor. Now we also know that she is out of her mind. I will write more about it in my Substack blog, Grifter News.
It’s worse. She’s a malevolent actor who was actively seeking to do a bad thing.
No serious judge would’ve wasted as much time taking a fool like Josh Blackman seriously.
She timed it for the politics, too.
Perhaps you should wait until it gets tried in higher court. Come back then and apologize as this ruling will stand.
We are getting back to a constitutional Republic that we used to be. The next 12 years (at minimum) of Republican (populist) control will trim the sails of the crazy leftist ideas. And appoint few more constitutional judges to the SCOTUS. Life will be good.
With the Caveat that I have not read a single one of those 93 pages...
I've defended Judge Cannon in these comments before, assuming good faith. Now, I fear that defense was unwarranted.
Very mixed feelings here. Seems like a denial (of the MtD) with leave for an interlocutory appeal would have been better politically (even if it aggravates those who want the trial before the election/inauguration) if she truly in her heart-of-hearts believes in this is the correct legal outcome. But at a certain point when you keep being the hand-of-god in the proceedings around you, you lose all credibility.
I am disappointed for the state of our union as it pertains to our Article 3 institution.
With the same caveat that I am relying on this summary and have not read the opinion, this does not at all strike me as bonkers. It seems rational, especially on the point that past history tells us absolutely nothing useful given the all over the lot approaches and the fact that the only explicit Congressional authorization for something like this no longer exists. This was a workaround by DOJ to the loss of the Independent Counsel authorization, and it seems to me a fair question of whether it is consistent with the Constitution. Happy to look at the forthcoming analytical, as opposed to results-oriented or political, critiques, and certainly willing to be convinced, but at least on first blush, this certainly seems a plausible analysis.
Smith's basic arguments were that even in the absence of any statutory language barring his appointment, the same was within the discretion of an AG, and that his appointment was no different than any other officer appointed by an AG despite the language of both relevant constitutional clauses
I just finished reading Judge Cannon's decision. I don't think it is bonkers at all. She may be wrong, and I am waiting to hear the views of those who are qualified to opine on her reasoning, but it is a well reasoned decision, and should be taken seriously.
What it ignores is precedent going back to the Grant Administration.
I served as an Associate Independent Counsel for Ken Starr. During Whitewater, attorneys for then-Arkansas Governor Jim Guy Tucker succeeded in getting a district judge in Little Rock (who happened to have been a Clinton pal and donor) to dismiss an indictment on the ground that AG Reno exceeded her authority to refer that matter to the IC. We appealed successfully to CTA8 and also got the case reassigned due to the judge's bias. It's interesting that the statutory IC was challenged as violating the separation of powers because Congress put the appointment power in the judiciary branch and limited the Executive's removal power, whereas here the argument is that Congress should have enacted an IC statute to authorize Smith's appointment. I agree that Cannon was very careful and canny (no pun intended) to cite so many Justices' opinions and writings (including several predating their judicial service). This is called "teeing up the ball." Whether SCOTUS will swing remains to be seen but I suspect this will be reversed by CTA11 at a minimum.
Quickly I bet.
The 11th Circuit will reverse, just like her appointment of a special master in Trump's civil suit challenging the search warrant.
But unlike that appointment, this one could be taken up by SCOTUS. Her opinion is well-reasoned, and I think the sticking point for reversal would be the remedy for a violation. Could this not be simply transferred to the Miami US Attorney's Office for handling?
I read the opinion and am sympathetic. It's hard to come up with a clear legal basis for the DOJ to give a non-DOJ employee the authority that they gave Smith.
I get that people want Trump punished, and he sure looks guilty, but if the prosecutor doesn't have legal authority, then he doesn't.
Basucally, Cannon ignores law and precedent and prior court rulinsg that cut against her decision and then pretends she is writing on a blank slate. She dismisses contradictory language in US v Nixon disingenuously.
She had a place she wanted to go in this opinion, and she carefully ignored or dismissed whatever would have stopped her from getting there. That's... not judging.
The corruption of our court system is now complete.
Finished reading the opinion, and it is a piece of work. It’s hard to believe that she hadn’t waited for oral arguments to close before she began drafting the opinion. (If she did start 21 days ago, she would have had to research and draft eight pages a day, including weekends.) Any precedent that she disliked was inapplicable or mere dicta. Or the appellate courts didn’t do their own research to anticipate her future interests in motivated reasoning. She didn’t mind citing a DC District Court opinion but ignored a DC Circuit Court on point. I would not be surprised at all to learn she had the assistance of some non-party in preparing this.
I am not an attorney, so I'll let those more qualified opine on whether this opinion is correct or not. Purely on its face, this doesn't seem like a frivolous issue at all.
As an observer, though, I am very disappointed to see everyone just dogpiling without addressing the opinion at all. This entire comment thread is a massive series of Ad Hominem attacks with no actual reasoning. It's sad to see.
One thing I'm wondering about: might the Supreme Court revisit Morrison v. Olson?
The Scalia dissent in that case is regarded by many conservatives as a superb—and analytically correct—opinion. It's cited favorably in both Judge Cannon's opinion in the documents case and Justice Thomas's opinion in the Trump immunity case.
I don't know that an appeal in this case would require SCOTUS to revisit Morrison. But I think that if they wanted to do so, this case could be a vehicle for doing so.
Didn't Morrison relate to Independent Counsels?
Yes, under the Ethics in Government Act. But its reasoning - and the reasoning of Scalia's dissent, if that becomes the majority view - might be applicable to Special Counsels as well.
"This wolf comes as a wolf."
I think any pretense of "she's just in over her head" is gone now.
I can't say I saw this coming - my sense is that she was going to bob and weave until after the election. See https://verdict.justia.com/2024/06/24/the-continuing-relevance-of-the-rosenberg-espionage-case-for-judge-aileen-cannon. Unless everything is massively expedited, the appeals will take us past the election.
As a non-lawyer, I would like to understand: Does this actually matter? What is to prevent Garland’s DOJ from re-filing the same indictment in a few days after a Senate-confirmed lawyer has been adequately briefed on the investigation to date?
For one thing, it would have to start from scratch with a new grand jury
You are correct. Garland himself or the US Attorney for that district could refile tomorrow
Refile in Northern Jersey (re: Bedminster nexus).
I suppose so, but 1) it would have to go through Congress... and the current composition of the House means it's unlikely; and 2) it would take quite a bit more than "a few days" to adequately brief any new lawyers to the point where they could direct this case.
All I can think of is all that classified information... and Cannon just handed it to Putin. (As much of it as he doesn't already have, that is.)
If the GOP wins both houses of Congress, Smith's office will be shut down by dint of lack of appropriation for his office.
It is better to be thought of as being in the bag than to issue this ridiculous opinion and remove all doubt.
Agreed it would have been best for her. But It is better for the rest of us that she did.
I am not a lawyer, much less a constitutional scholar. But this ruling seems a bit out of bounds. From what I've seen, trial courts generally take the law as valid, and rule accordingly. It's up to the circuit courts to rule, on appeal, that the law used as a basis for prosecution is unconstitutional.
This is not accurate. The trial court's role is to apply the law, subject to the binding precedent of its superior courts. If the circuit court (or SCOTUS) has not ruled on the issue before a trial judge, that judge is to rule on the case before it as they think appropriate, subject to the applicable standards of review.
Trial court is not, as Connon did here, supposed to find rationalizations to ingore on-point SCOTUS precedent, though.
Can you quote the questions presented and their holdings in US v Nixon and identify by which of them Judge Cannon was bound?
Judge Cannon quoted them, so it shouldn’t be difficult.
I think she is right. Congress let the Special Counsel law lapse because much to the democrats surprise it was used against a democrat. Congress could have renewed the law or they could have modified the law. The justice department under Janet Reno and others acted as if they had authority to appoint these Special counsels. It is interesting that a 90 plus year old former Attorney General who never went to law school was among those that pointed out the problem.
Janet Reno appointed Independent Counsels under the independent counsel statute which remained in effect until the tail end of her time in office.
Attorneys general both before during and after the passage and lapsing of the IC statute have appointed special counsels under the same statutory authority used by Garland to appoint Smith. Nixon's AGs, Ed Meese (whose opinion has since flipped), Bill Barr as HW Bush's AG, Rod Rosenstein, Bill Barr as Trump's AG, Merrick Garland.