Jack - Episode 85.5 | Cannon Dismisses the Case

Episode Date: July 16, 2024

She did it! Judge Aileen Cannon dismissed the Mar-a-Lago case. She bought Justice Clarence Thomas’s drive-by concurrence in the immunity ruling saying Jack Smith was appointed unconstitutionally.Jack Smith has requested permission from Merrick Garland to appeal Cannon’s ruling. Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ Brian Greer’s Quick Guide to CIPAhttps://www.justsecurity.org/87134/the-quick-guide-to-cipa-classified-information-procedures-act/ AMICI CURIAE to the District Court of DC https://democracy21.org/wp-content/uploads/2023/08/Attachment-Brief-of-Amici-Curiae-in-Support-of-Governments-Proposed-Trial-Date.pdfGood to know:Rule 403bhttps://www.law.cornell.edu/rules/fre/rule_40318 U.S. Code § 1512https://www.law.cornell.edu/uscode/text/18/1512 Prior RestraintPrior Restraint | Wex | US Law | LII / Legal Information InstituteBrady MaterialBrady Rule | US Law |Cornell Law School | Legal Information Institutehttps://www.law.cornell.edu/wex/brady_rule#:~:text=Brady%20material%2C%20or%20the%20evidence,infer%20against%20the%20defendant's%20guiltJenksJencks Material | Thomson Reuters Practical Law Glossaryhttps://content.next.westlaw.com/Glossary/PracticalLaw/I87bcf994d05a11e598dc8b09b4f043e0?transitionType=Default&contextData=(sc.Default)Gigliohttps://definitions.uslegal.com/g/giglio-information/Statutes:18 U.S.C. § 241 | Conspiracy Against Rights18 U.S.C. § 371 | Conspiracy to Defraud the United States | JM | Department of Justice18 U.S.C.  § 1512 | Tampering With Victims, Witnesses, Or Informants Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJCheck out other MSW Media podcastshttps://mswmedia.com/shows/Follow AGFollow Mueller, She Wrote on Posthttps://twitter.com/allisongillhttps://twitter.com/MuellerSheWrotehttps://twitter.com/dailybeanspodAndrew McCabe isn’t on social media, but you can buy his book The ThreatThe Threat: How the FBI Protects America in the Age of Terror and TrumpWe would like to know more about our listeners. Please participate in this brief surveyListener Survey and CommentsThis Show is Available Ad-Free And Early For Patreon and Supercast Supporters at the Justice Enforcers level and above:https://dailybeans.supercast.techOrhttps://patreon.com/thedailybeansOr when you subscribe on Apple Podcastshttps://apple.co/3YNpW3P

MSW Media I signed an order appointing Jack Smith. And those who say Jack is a fanatic. Mr. Smith is a veteran career prosecutor. What law have I broken? The events leading up to and on January 6th. Classified documents and other presidential records. You understand what prison is?

Send me to jail! Welcome to a very special bonus episode of Jack, the podcast about all things special counsel. It's Monday, maybe Tuesday. I don't know when you're going to get this. July 15th, maybe July 16th. I'm Alison Gill. And I'm Andy McCabe. Okay, we're bringing you this bonus episode

because Judge Eileen Cannon has dismissed the case against Donald Trump in Florida on the grounds that the special counsel, Jack Smith's appointment violated the constitution. So we're going to talk about her ruling. We're going to talk about the precedent and the possible ways forward for Jack Smith and the Department of Justice. Until today, every federal judge that considered the issue, all eight of them, unanimously

found that attorneys general can appoint a special counsel. Judge Cannon has departed from that tradition. Oh, yeah, in quite spectacular fashion. And we do actually have a statement from the special counsel's spokesperson on what they plan on doing. But let's cover what her ruling says. We'll start with what her ruling says. We'll talk about a couple of great

points made by some experts that are close to us in the podcast and that we also follow on social media that are great experts and con law experts and law professors. And then we'll talk about the options and the ways forward. And we'll give you that statement from a special counsel's office on how they plan on proceeding, or at least how it appears they plan they will proceed. So Andy, with that, how about you kick it off with some of these really amazingly unprecedented and hugely long run on sentences in Judge Cannon's ruling.

93 pages worth of run-on sentences. So if anybody's like really digs run-on sentences, this is for you. You should download the PDF immediately. Okay, so let's start with the beginning, which cuts right to the chase. Former President Trump's motion to dismiss indictment based on the unlawful appointment and funding

of Special Counsel Jack Smith is granted in accordance with this order. The superseding indictment is dismissed because Special Counsel Smith's appointment violates the Appointments Clause of the United States Constitution at U.S. Constitution Article 2 Section 2 Clause 2. Special Counsel Smith's use of a permanent indefinite appropriation also violates the appropriations clause, US Constitution Article 1 Section 9 Clause 7. But the court need not address the proper remedy for that funding violation given the dismissal on appointments clause grounds.

The effect of this order is confined to this proceeding. Hmm. That's an interesting statement right there. The effect of this order is confined to this proceeding. Yeah. I mean, on one level, it's like, of course it is. She doesn't have the authority to make rulings on anything that affect anyone else. That's why, you know, standard old district court federal judge decisions are not considered precedent of anything. It's not ruling law, right?

As you're writing a legal brief or something in another case, you might look at how other district courts decide an issue. And you might, if they're all overwhelmingly in one direction, as was the case here, you might cite to that kind of trend, but it's not technically a binding law because the district court is the kind of court of, it's like the entry level federal court.

Yeah. Also, I had asked Joyce Vance a while ago, because I kind of saw the writing on the wall when she decided to allow oral arguments in a mini trial on this. I said, so when she dismisses this case, will that mean Jack Smith goes away in DC as well? And she said, nope, nada. She goes, never does a district court judge bind any other district court judge from doing whatever they are doing. So real quick before we get into the particulars, listeners of this show probably were prepared for this day. And so I want to kind of give everybody almost a high five because we've all been waiting for a reason to go to the 11th circuit. Right?

We've all been like, she's going to dismiss this on something. It would have been extremely perilous had she waited until trial and dismissed it when it was too late to refile these charges. But she's kind of done what we thought she would do, which was either dismiss it on this or dismiss it on SIPA stuff or make an egregious, clear legal error on SIPA, SIPA rulings. We thought for a minute she was going to release all the witness lists and we would be able to go up to the 11th. So I really kind of want to, I hope everybody hops on board with me here in that yes, this is ridiculous and

unprecedented and stupid on his face, but also, yay, we get to go to the 11th circuit because it's kind of something we've been all waiting for. So let's talk about how wrong she is on this. But or you know Or what are your thoughts on us finally getting on ramp to the 11th circuit here? I think that's true. I also think it's interesting too, because it's kind of in that way, it's a departure from the way she's been handling

these motions thus far, right? We always have had this feeling that she's been very cagey in her decisions, most of which begrudgingly accept the special counsel's reasoning on any given issue. But then she always, in motions that go the other way, she avoids the sort of permanent rulings that could potentially lead to appeals. But this one, man, she just took aim at the entire case and knocked it out, which is the essence of an interlocutory appeal. There's no other way to handle this

from the prosecution side. So there's no dispute as to whether or not it's interlocutory. It absolutely is. And before you go on, it is important that we note that this dismisses the entire indictment against Trump, Nauta, and De Lavera, the entire superseding indictment. And so it's all been wiped out. So, you know, whereas before we were like, oh, maybe she'll sever Nauta's case and move forward with pieces of this or, you know, something like that. No, the entire indictment is dismissed. And that's very interesting because she invited and nudged Nauda and Deo Lavera to join this motion.

And they did. Just kind of like, and how we're gonna get into this in a second, Clarence Thomas, when nobody asked him, out of nowhere, in the immunity ruling and his concurrence nudged her Nudged cannon by saying I don't think Jack Smith's appointment was constitutional. Yeah, so There's a lot of nudging going on This and the timing is pretty striking to the first day of the RNC. Yeah

Alright, so let's dig into the details a little bit here. She goes on to say in this extensive written order, the motion before the court challenges the legality of special counsel Smith in two consequential respects, both of which are matters of first impression in this circuit and both of which are matters of first impression in this circuit, and both of which must be resolved before this prosecution proceeds further. The first is a challenge to his appointment under the Appointments Clause, which provides

the exclusive means for appointing officers of the United States." And we again have the cite here to Article 2, Section 2, Clause 2. The Appointments Clause sets as a default rule that all officers of the United States, whether inferior or principal, must be appointed by the president and confirmed by the Senate. Okay. So something that, a phrase that stood out to me here is when she says these two challenges, the motion before the court has two consequential respects, matters of first impression. They're both matters of first impression in this circuit. Can you explain what matters of first impression

means? Sure. So I think that technical translation of it is that it's a matter that has not been addressed by the court before. By the 11th Circuit. Yeah, but essentially it means by whatever court is saying that, whatever court is making that claim, essentially it means there's no precedent on the issue. It is absolutely never been ruled on before.

This is the first cut at it. And she does specify that she's saying it's a matter of first impression for the 11th circuit, which may be true, but it's kind of weird because it almost feels like she's setting it up, she's setting up, giving herself kind of the permission to engage in this extensive, unbelievably detailed, historical semantic analysis.

Right. Well, you guys have never thought about this before. Right. And completely ignore all the many courts, albeit not in the 11th circuit, but other courts that have decided the issue. So she, I definitely feel like this thing is very intentionally written. And I think that's part of it. She's kind of making a case for herself as much as she is for the ruling.

Right. Like she's trying to mitigate removal from this case. Yeah. She's about to. By saying like, hey, you know, I have decided murder is not illegal. That's never been litigated in the 11th circuit before. Even though it's ridiculous, there's never been a holding in this circuit before. So kind of like the, if I'm reading between the lines, she's saying, so you can't remove

me from this case based on this because we've never, you've never had this question before you before. Yeah. I mean, maybe she's going that far. It's hard to say, but I think she's definitely, at least, you know, in the least case, she is laying this out as a foundation to explain why she's going to go through this 93 pages of hair splitting analysis. It's broken out like an outline in some places. There's bullet points. She's got tons of law review articles that she cites to and all kinds of claims of legislative history. And then other places where she explains you don't need legislative history and then she cites to Webster's dictionary on all these semantic, the significance of past participle verbs in the congressional language. She's got to justify why she's going to this incredible length to do this very, you know, specific textural interpretation.

When in reality, there's eight other courts that have addressed this, have addressed the actual legal precedent, have addressed the relevant Supreme Court cases, which there are a couple, and come to the same conclusion. But she's going in a totally different direction. So I feel like this is part of that setup. Right. It's kind of like, here's, you know, if the 11th circuit holds my finding here, then there will be precedent in the circuit. So I have to write it. Right, right. She's trying to build a foundation, but you know, anyway, so that that's what matter of first impression means. But that's why I think she's going

out of her way to kind of raise that issue early on. So she continues in the decision to say, both the appointments and appropriations challenges as framed in the motion raise the following threshold question. Is there a statute in the United States code that authorizes the appointment of special counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment. And then she goes on to say, the bottom line is this, the appointment's clause is a critical constitutional restriction stemming from the separation of powers and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The special counsel's position

effectively usurps that important legislative authority, transferring it to a head of department and in the process threatening the structural liberty inherent in the separation of powers. Man. All right. So the bottom line here is that because Jack Smith was not confirmed by the Senate, right, because he was working for the Hague when he was picked up, that he can't be special counsel. That violates the separation of powers. Even though the special counsel regulations state that appointments actually must come from outside the government, which is what I was telling,

you know, Hunter Biden's lawyer, like David Weiss came from inside the government. John Durham came from inside the government. That seems to violate special counsel regulations. So she's kind of setting this new rule now that they have to come from within the government. They have to individually be appointed by the president and confirmed by the Senate. But what if you're investigating the president anyway?

Yeah, it's confusing. Yeah, it's confusing because of the way she's presenting it here. Eventually what she gets, she gets around to addressing the fact that the appointments clause, it provides two different ways for appointments to be made. One is the traditional way. The president nominates and the Senate confirms. So in order, the appointments clause says in order for, you know, the president has this authority to, to appoint people to be take over a government officer positions. And then they must be approved by the Senate. That's one way.

The second way is Congress can pass a law specifically delegating the appointment authority to either the president or a court or a head of an agency. Right. The attorney general in this case, right? Correct. The attorney general in this case. But isn't she also saying that even if that law were on the books, she would strike it down as unconstitutional? I don't think so. Because Congress would have confirmed.

No, because, so she's saying there is no such law that specifically grants the attorney general the authority to create this position. Right. Like there used to be a law. But even if there was, she's saying that the Congress has to, Senate has to confirm. No, Senate, the Senate can firm is the first channel, right? If the president can, any day he wants, he can create a new officer position in the administrative

or the executive branch and he can appoint someone into that position, but they're not, their officer in that case is not actually created until the Senate confirms it. So that's like channel one. Channel two is Congress says, we hereby authorize and provide the money for a new federal agency, the department of bad judges or whatever, and we grant to the attorney general the authority

to pick the leader of that. And if that passes Congress as a law, then the attorney general has the authority to put someone in that role and that person qualifies as an officer of the government, a principal or subordinate officer of the government, depending on how much authority they have. And because the law comes from Congress, then you have not usurped or surpassed or circumvented Congress's role in separation of powers, et cetera, et cetera. That's exactly right. So in one case, the president can do it.

In another case, you know, a non-president can do it, but only after Congress passes the law. And the reason for that is like the separation of powers issues means that both the president, who can appoint officers on his own, is accountable to the public through the political system and Congress is also accountable to the public through the political system. So you can't- Yeah, and I think the term is advice and consent of Congress, right? You can't, as a head of an agency, you can't just go around creating positions

and putting people in them because that would be usurping this function that is specified by the constitution to rest in the hands of the president or in Congress after they pass a law. So that's kind of what she's saying. I know that's kind of hard to, that's a bit down in the weeds and I apologize for how confusingly I laid that out, but that's what she's saying. I know that's hard to, that's a bit down in the weeds and I apologize for how confusingly I laid that out, but that's what she's saying. It's good to have clarification there. Yeah, so for this situation though,

channel one doesn't apply because Jack Smith never made the argument, hey, I was appointed by the president and confirmed by the Senate. Because of course he wasn't. So that one, that disregard that whole way. So the whole thing is focused on, did Congress pass a law that gave the attorney general the authority to appoint Jack Smith? And her conclusion is no.

Right. And so that's why she's dismissed the whole case. Exactly. She also goes on to later conclude that the funding was fugazi and doesn't pass constitutional muster. But it doesn't matter because she'd already booted the case. So it's not, you know, it's kind of a-

Now the 11th Circuit will have to also consider that because she brought it up. They will. And I want to talk more about some of the other things that she cites and reasons that she cites, but we do have to take a quick break. So everybody stick around. We'll be right back. Welcome back.

Okay. So before we move on, I'm going to just beat this dead horse a little further because I think it's really interesting when you get into the nitty gritty on how she attacked Jack Smith's argument. It exposes, I think, some of the contradictions that I think will be very relevant on appeal. These are the sorts of things that Jack Smith's going to point out to the 11th Circuit when he's now going to be trying to argue that she's wrong. So in his papers, the special counsel relied on, we talked about Congress has to pass a law that gives the attorney general the authority to make this appointment. And so Jack Smith pointed to a law that's at 28 USC,

section 515, and it has two sections, A and B. And she really goes deep on, this is really the meat of Jack Smith's argument, and she really goes deep on saying like how wrong he is here. But there's a couple things that I thought were worth pointing out. One, she says there's no law that that grants us authority to the AG. Well, there quite obviously is, and

it's 28 USC 1515. Section A reads, the attorney general or any other officer of the Department of Justice or any attorney specially appointed by the attorney general under law may, when specifically directed by the AG, conduct any kind of legal proceeding, yada yada yada. Just goes on to say what authority a specially appointed attorney would have. So clearly Congress intended to give the Attorney General the authority to appoint a special attorney because they say it in this law. So I just don't... So this is 28 U.S. Code Section 515, authority for legal proceedings, commission, oath, and salary for special attorneys. And this is a law, a statute passed by Congress. Am I right?

And it specifically says, or any attorney specially appointed by the attorney general under law. Maybe she's like, well, under law, what law? This law? Like, yeah, that's basically what she says. She goes on and on saying how this doesn't really count. So section A, as we just mentioned, specifies what a special attorney can do. Section B has more kind of like specifics in it about how the special attorney must take an oath. And it also goes on to say foreign counsel employed in special cases are not required to take the oath. And that makes sense because if the AG was compelled to appoint a foreign attorney, you're not going

to make a foreign person swear an oath to the US Constitution. So the crazy thing is she claims that this law, one of her arguments is that it doesn't apply to attorneys who were appointed from outside of government. But yet the law itself presumes that it is okay to appoint foreign attorneys who by definition don't work for the Department of Justice. Well, he's not foreign either, Andy. So any non-foreign, non-government employee isn't covered by this statute. Is that her argument? Maybe, but you could make the argument Jack Smith was kind of foreign because he was living

at The Hague at the time he got appointed. But I mean, it's just so ridiculous. She goes on and on about, she says, Section B is logistics only and it only applies to special attorneys already retained under the old expired independent counsel law. That's how she interprets. She's saying because they use the word retained past tense, they meant, and when they drafted this law, that it only applies to special attorneys who had been appointed when we previously had an independent counsel law. But none of that is anywhere in

the statute. No, and that doesn't make sense. Retained means 25 years ago? Retained could mean they were just appointed five minutes ago. Anything is past tense. Like the retained, it's mentioned in the context of a lawyer who has been retained then has to take an oath. Well, of course you only take the oath after you've been appointed or retained. Andy, everybody knows that it has to be more than 25 years in the past in order to be past tense. Everything that happened within the last 25 years is present tense. Right? This is so crazy.

Wow. So she's busting out Webster's dictionary on past tense and participles and oh wow. Totally. And she relates all this stuff with like a super high degree of confidence. There's a bunch of what you would expect kind of snarky, very conclusive, dismissive references to the special counsel's arguments and things like that. And okay, to be fair, like judges do that kind of stuff. They're a fairly superior crowd or they think they are. So, you know, I just think that keep hope alive on the appeal because I feel like there's a lot of this reasoning, even though it's long, you know, the strength of a judicial ruling is not measured by the weight of the paper that it takes to write. Long doesn't mean good.

Exactly. It's just like school, right? If I had more time, I'd have written a shorter paper. If I'd had more time, I would have gotten a better grade, I guess is her theory. I would have gouged my eyes out before reading this is what I would have done if I had more time. And I don't recommend reading it. It is an eye gouger.

But I think that there's a- It's a brain twister too, because she's going around all, she's really twisting herself into knots to make this a reality for Donald Trump. Yeah. I mean, I got to say that's what it looks like. Although, yeah, well, I'll hold that comment until we're kind of at the end. Because I'd be interested to know if she says this doesn't apply to attorneys from outside DOJ, but the special counsel regs say that they have to come from outside the DOJ. What sort of attorneys appointed by the attorney general are they talking about in this law? What are they talking about if not independent and special counsel? You know?

Yeah. I mean, I can't, it's hard for me to try to figure out how she would explain that. But yeah, it doesn't, there's a lot in here that I, so I was reading all this on the train on the way back from New York this morning and the train is like really bouncy when you're trying to read. I don't know if you've ever noticed that you're just kind of like, so I'm reading this obtuse 93 page ruling is bouncing around in my lap. I was like, I feel like it probably makes more sense if you skip certain lines and go backwards again because of the train bounce. Maybe it makes more sense if you drink while reading it, but I was not doing that.

Yeah. And so a couple other things, we talked about whether this impacts other cases. She specifically said the effect of this order is confined to this proceeding. It does not. But that doesn't stop other people from filing based on what she says, but district courts don't set precedent, right? Like you said, under Biden's special counsel was confirmed by the Senate. David Weiss was confirmed by the Senate. So this, I don't think would apply to him, right? That's correct. Her whole point is that you have to circumvent there. He's circumventing the separate the power of Congress.

And again, it's kind of crazy because none of those people were confirmed for special for their special counsel job. No, they were confirmed to be US attorneys, US attorneys, right? Durham, Weiss. Now Robert Herr could run into a problem, but that horse has left the barn. Doesn't matter.

Biden was exonerated and all the terrible political crap that he shoved in that report that was completely untrue and contradictory to things that he said in the transcript in the interview. It's already out. The horse is out of the barn there. But there's no 11th Circuit precedent. But there is Supreme Court precedent, right?

And others who have challenged the special counsel's authority include Hunter Biden, Paul Manafort, Roger Stone's associate, Andrew Miller, remember him? And of course, Concord management tried to get Mueller thrown off the case too. There are tons of recent examples and many that go even further into the past. Nobody, none have ever said, oh

yeah, the special counsel is unconstitutional. The idea of a special counsel not confirmed by the Senate is unconstitutional. And of course, as we expected, Cannon repeatedly cites Justice Thomas's immunity concurrence. But as Anna Bauer points out, she's dismissive of a passage in the Supreme Court's unanimous Nixon opinion, because the issue was not briefed or argued before the court. Bonkers, right? So here's a couple of excerpts from the ruling here. To the extent special counsel Smith insinuates that under law in section 515A does not require what it plainly says, that special attorneys must be appointed by the attorney general under statutory law, no basis is provided for that a textual suggestion. Yes, it is. She goes on to say in another

section here, first, Nixon does not engage in any statutory analysis of the cited provisions. Although Nixon quote gave passing reference to the cited statutes. Okay, that sounds like a reference. The opinion engaged in some statutory analysis there, but okay. Even though they mentioned it, they didn't really mention it for long enough. I've got 93 pages. I don't see 93 pages on the analysis here. She says the opinion provided no analysis of those provisions. Text. So, and that's Thomas. That's a quote from Thomas's concurrence. Yeah. And following a comprehensive review of the Supreme Court record, the court concludes that the disputed

statements from Nixon, the disputed statement from Nixon is dictum. The issue of the attorney general's appointment authority was not raised, briefed, argued or disputed before the Nixon court. So that's why Anna Bauer pointed out that, you know, even though she cites Thomas's immunity concurrence, she completely ignores the Supreme Court's unanimous Nixon opinion. And she says it's because the issue wasn't briefed, argued before the court. And Thomas said it wasn't really fully analyzed. Even though they mentioned 515, it wasn't fully analyzed. Unbelievable. You know what is dictum? Thomas's concurrence, because it has to do with an issue, to quote Judge Cannon, that was not raised, briefed, argued or disputed before the court. That

issue was not raised. The court did not agree to hear that issue. Nobody briefed, argued or disputed before the court. That issue was not raised. The court did not agree to hear that issue. Nobody briefed it. It wasn't argued. It was just Thomas taking a drive by it, Jack Smith. I mean, that's all it was. And honestly, the entire immunity opinion is dictum because it has nothing to do with what

the circuit court decided. I mean, that's why I was, you know, on a Friday night, because I like to party. That's why I was writing up mock Supreme Court ruling that the whole state would be denied and they wouldn't take up the case. Because that's what happened in Thompson, right? When Benny Thompson wanted to get a bunch of papers for the January 6th select committee from Trump. And Trump said, I have executive privilege. I'm privileged.

You can't have my documents. And the circuit court said, even if you had the privilege to exert, which you don't, we still wouldn't. It's still no good. Because law enforcement and this investigation takes precedent over your privilege. And so the Supreme Court said, we're not going to take up this case because, you know, dicta,

it's moot. We don't have to decide whether you're privileged. We sure would love to. We would love to set a rule for the ages about executive privilege and whether former presidents documents are considered executive privilege, but we can't because that's not what the circuit court found. And I could have sworn that's what they were going to do in this immunity case too. We would love to set a rule for the ages and make up a whole new thing about future presidents immunity, but we can't because we are restricted to determining

whether or not what the circuit court held, which is this case only, was correct or not. They didn't do that. They ignored DICTA and they went ahead and created a rule for the ages that had nothing to do with what the circuit court did. But now you're bringing it back down to this very granular level where Judge Cannon is saying, I can't, you know, this is Nixon is we can't talk about because they didn't brief or argue, but she's relying on Thomas's concurrence, which was not briefed or argued. It's bananas. That's the kind of thing that I think will be very impactful on the 11th circuit. She's ignoring a very clear, unanimous Supreme Court decision that is directly relevant to this issue, and

embracing Thomas's dictum and a concurrence that no one else joined on an issue that was not before the court, was not briefed, was not argued, was not decided. Or analyzed. So I think, you know, that's so obviously wrong. I kind of feel like in their last two handlings of her mistakes, they didn't hesitate to slice and dice through the mess that they thought she made. And, you know, let's hope the same thing happens here. We'll see. We'll see what happens. We do have to take another quick break. We have more to discuss. We'll be right back.

All right, everybody. Welcome back. So let's talk about the options for this case now. It has been fully dismissed, the entire superseding indictment, all of the charges against all three co-defendants. So what are the options for the Department of Justice? Our SIPA expert, Brian Greer, laid them out pretty perfectly on Twitter. If you're not following secrets and laws on Twitter, you ought to be. He says the Mar-a-Lago case was never going to a jury with Judge Cannon. So other than the political gift of the timing, which is lined up right nicely with the RNC, or as some people might think, political gift of the timing, which is lined up right nicely with the RNC, or as some people might think, political gift on the timing because now everybody will shut

up about Biden's age and the shooting at the Trump rally, not sure what she means, but today's development, he says, merely accelerates the process of DOJ figuring out the next steps. However, he says there are no quote-unquote good options here for Jack Smith. The question is which is the least worst? He said I'd start from the premise that Smith appealing and not asking her for removal may be the worst option. She's proven she'll do everything she can to tank the case for Trump, but asking for her removal is a pretty dramatic step, one that the DOJ will not take lightly. This would be the second time she's taken an appealable, fairly lawless step. So maybe it's enough to get her removed, but she'll just say, hey, the Supreme Court

justices agree with me. And I think that's where what you're talking about, Jack Smith's argument about dictum will come in. As others have noted, he said, filing a new indictment from the US Attorney's Office for the Southern District of Florida is also an option because if you have the US Attorney in Florida file the indictment, you no longer have to contend with the fact that the person who's filing the indictment was not confirmed, or the advice and consent of the Senate or Congress, right? Because the US attorney was. But if it goes to Cannon again, which is likely, what have you accomplished? And she'd likely need to do something again

to ask for removal. Like you're starting from scratch. And I haven't, Andy, I've got my feelers out there. I haven't gotten a direct answer from clerk of the court or from any experts like Charlie Savage, who wrote this up for the New York Times last year about the odds, right? Because the odds in 2023 were one in four. And it had a lot to do with the fact that multiple senior judges in four and it had a lot to do with the fact that multiple senior judges in that district had reached their quota because when you're a senior judge, when you go to senior status, you only take a certain amount of cases per term. They had all reached their quota so they were no longer in the running, right?

Pull all of them out. There was another judge that was on vacation and then there was another judge, Middlebrooks, I think, who was only taking cases in the very heavily trafficked, I think, Miami district. And so he wasn't in the running. And so you ended up with a one in four chance of getting Canon in 2023. And that's when we got Canon. I don't know what the odds are right now. I don't know what the senior judges quotas look like and caseloads look like right this minute. I've got the question out there and we'll keep you posted as far as that goes. But that would only come into play if you were going to refile through the US Attorney's Office in Florida. He goes on to say, the third option I'd float is filing a new indictment

in DC. As we've previously explained, you know, you, me and Brian, Andy, when we talked to the Sharr School at George Mason or we've talked about it on this show, this indictment could not include the Espionage Act charges. There's just no legal basis for venue in DC. And the immunity decision also makes that harder because he was president when he left with the stuff. This new DC indictment would be narrow and focus only on Trump's obstruction of the grand jury subpoena.

Not his obstruction about the videos and flooding the thing and deleting videos of videos of him obstructing justice, right? It would just be obstruction of grand jury subpoena. There is a legal basis for bringing this case in DC of broad under 18 US code 1512 and or 1515 a the official proceeding includes a grand jury obstructing an official proceeding. That's right. He says there's a question of whether the statutory venue provision is constitutional in US v. Try in 1998, a district court permitted a case like this to proceed. There is some earlier DC precedent to the contrary, but Congress amended 1512's venue provisions after those decisions. He's talking about changing venue to DC. And under

the recent Supreme Court case of Smith v. United States, there is an argument that a venue challenge from Trump would not be appealable until after the conviction. So it wouldn't be interlocutory, but would this Supreme Court agree? Probably really hard to say. Where you want to, I wouldn't be confident betting against that one. No, me neither. I can't say with any clarity what the Supreme Court will do from here on out. But as Chuck

Rosenberg said on TV this morning, on Monday morning, DOJ would be reluctant to pursue the option of bringing the case in DC for the perception of judge shopping, given the perception that they would be judge shopping. And Brian Greer shares that concern. The argument in favor is that Canon and the Supreme Court with their immunity decision have changed the legal landscape. So we're not judge shopping. The whole legal landscape has changed with her dismissal and with the immunity ruling. Yeah. He says remember the Espionage Act charges are really DOA with Canon after the immunity ruling. Even if the case goes to someone else, I think the Department of Justice would prefer to narrow its indictment somewhat to focus solely on Trump's failure to return the docs and obstruction of justice.

So even if DOJ pursues option one, appeal and removal, or two, refiling in Florida, they will want to narrow the allegations of the indictment somewhat to focus squarely on his failure to return the docs after the grand jury subpoena while still keeping the espionage act charges. And finally, filing a new indictment either in Florida or DC would raise questions about interference with the presidential election. Even though we're outside the mythical 60 day window, DOGA didn't create this situation, Judge Cannon did, but the perception of playing politics is actually there, it's real. So he says, sadly, none of these options are good. They're all bad. Unlikely though, the question is, which is the least worst? It's a very tough

call, but I'd likely pursue option one appeal and removal and then still narrow the indictment allegations if and when the case proceeds. Well, Brian, we have a statement from, it's from Peter Carr, spokesman for special counsel Jack Smith's office specifically, not the DOJ. Andy, what does that statement say? Yes. And Peter Carr says, the dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the attorney general is statutorily authorized to appoint a special counsel. The justice department has authorized the special

counsel to appeal the court's order. So there you go. No time wasted. So they're going to appeal. We don't know if they'll also ask for the removal. We'll have to see how that comes out. Yeah, that'll be interesting. But what you pointed out to me before we started recording was the little sentence, the justice department has authorized Jack Smith to do this. Talk about why you think that's important right there. I just thought it was funny because part of the, sorry for that noise.

That was my dog shaking his head and making all kinds of noises. It's okay. Hi, bupper. The part of Jack Smith... Because isn't Cannon trying to say that he's too independent or whatever? Yeah. So when you get into this, is he an officer or is he an inferior officer? Trump had argued if he's an officer, he had to go through channel one, pointed by the president, confirmed by the Senate. If he's an inferior officer, he has to be adequately supervised by a superior officer.

And Trump argues that he's not supervised. Well, I think that this statement is pretty good evidence that he's supervised by the attorney general since he had to get the attorney general's authorization to pursue an appeal. Right? And that's the argument that Jack Smith made in response to Trump's nonsensical, you're not really supervised by anyone. He is, of course, supervised by the AG. Kind of a little peephole into what he's going to appeal with, right? Yeah, there's no question. And it'll be interesting to see if they refer actually to that authorization in their motion, but they certainly could. I mean, it's an artful way of throwing

that in there. I think also, this is for me, before we saw the statement come out, I was already in category one, like appeal it and, and go swing for the fence, try to get it removed. Because I do think that there's significant grounds for appeal here. They've gotten treated well by the 11th circuit in the past. So the circuit knows kind of how bad she is and how many bad decisions she's made before. There's now a pretty long record of not only like questionable decisions, but also like pretty bad treatment, I think, of the special counsel and his attorneys in court.

And the law. And of course, the law is on our side. I think she's made a very pretty clearly wrong decision here. And when you put that wrong decision on the backdrop of the way that she's treated them, it all starts to look a little bit more like true bias, right? You can't just go in and say, oh, we want to remove because she makes decisions

we don't like. That's never gonna get you there. You gotta really make this case for bias. And I also think that the information that we found out about how she totally ignored these two other senior judges in the district who recommended to her that she recused because of the obvious like appearance of conflict that she has to deal with because of her own history on this case. That's another factor that I think would be relevant to the 11th circuit. Like what's going on in her

head a little bit. So yeah, yeah, that's. That's what I think. I think so too. I think we'll see mention of this case, obviously, and how this is wrong on the law. The statute is pretty clear, and there are not necessarily in the circuit, but elsewhere, eight other times. Other federal judges have upheld this. I think we'll see her clear error and manifest injustice on wanting to release the witness names using

a wrong standard for keeping those things under seal or not keeping those things under seal. And he had to file a motion for reconsideration, which she adopted and said, okay, you're right. You're ugly and I hate your face, but you're right. You know, because she always has to take a couple of shots at the special counsel when she grants him anything. Yes. I think he'll bring up that. I think he'll bring up, like you said, I think you'll bring up a lot of Trump's public praise of this particular judge. Although I'm not sure that that really makes that much of a difference because you can't, it's not, I mean, it's kind of like how it's like a totality of evidence, kind of how Mueller brought up all of the pardon dangles to Cohen, Manafort, stuff like

that. And then of course, as you said, those two judges, and this one of them being the senior judge who called her up and said, you should probably not be on this case. And she ignored that. And then of course, the special master debacle, I think you've got those things that you can bring up and argue for a totality of evidence for removal. And then of course, maybe just the inexplicable delay, there are nine undecided motions on this docket when it was dismissed. This motion took 144 days. It was filed last February. It's July. So that might be there too. Because he, I know Jack Smith and Jay Bratt have mentioned that this is just for delay, for delay's sake in several other filings. So I think that that might be a sixth thing that they could bring up.

But now we have confirmation of all of those options. We have confirmation that they will appeal. I don't think that appealing necessarily stops them from refiling with the US Attorney's Office or in a different jurisdiction, but it seems probable that they won't, that they're going to go for this appeal first and we'll see what it looks like. I don't happen to know how long they have to appeal this decision. Did she put that in her order or is there some local rule? I don't remember seeing it in the order. It's probably a local rule thing. It's usually some limited period like two weeks, maybe 30 days.

I bet we'll see it fast though. I think it'll be quick. I think they might have already had it written. We kind of also. I haven't had anything else to do. So yeah I think that I don't like the DC option at all. I think that really narrows the case and puts it on shaky ground. The refiling in Southern Florida is an interesting question but I tell you, I don't know that I agree with Brian on the necessity of narrowing the scope of the charges. He seems to really be behind that idea, which is fascinating and I'm sure we'll get to talk to him about that at some point. I kind of feel like- S1 0530 Particularly on the espionage. And I think it's

because that if this case goes to Judge Cannon again, you know, you and I have talked about the fact that the espionage charges should still stand because they have to do with retaining national defense information after he was president, not taking it from the White House while he was president. However, I don't know that that would necessarily bar Judge Cannon from seeing it differently and saying that because he was president and his official acts are immune and he left with all of these papers as an official act, nothing now can be questioned or indicted or looked at. She could definitely take, I could definitely see her taking that position. So I think that's what Brian or looked at. I could definitely see her taking that position.

So I think that's what Brian's getting at. Yeah, and I understand that. But I would appeal that immediately. I think it's dead wrong. He's not the president when he leaves town. Well, I guess in his case, he left an hour early or something like that. That's why he left early, yeah.

And he's not retaining them as president. There's nothing official about his status at Mar-a-Lago where those documents were kept. So I, you know, to me, that's a case, I'd be comfortable sending that question to the jury. I mean, so I don't think you have to. And to cut all that stuff out of here, I think really does an injustice to the case

and to the charges. This is not just a case about obstruction. It's clearly, that's a big part of it. But man, this is about somebody putting the nation's most sensitive secrets at risk. And I feel like there's a real equity that needs to be protected there. Yeah, I agree. I agree. I just don't trust the Supreme Court not to rule in favor of him leaving with the documents is immune and an official act and therefore anything that followed it is not questionable. Yeah. I mean, that's a risk. That's a risk.

But that would also mean that the obstruction is not questionable or, you know, that you can't because you can't obstruct documents that are legally yours or whatever. Right. So I think it's kind of, it turns into a fruit of the poisonous tree type of argument. Well, if he did all this as president, it was an official act, you can't use any of it. Yeah. It's either all or nothing, I would assume in an immunity discussion with Judge Cannon. All right. We have one more quick break. Just a couple more things to talk about. Everybody stick around. We'll be right back. Welcome back. So here's one that I wasn't expecting. Lindsay Graham. Didn't think you'd hear me leading off with Lindsay Graham in a jack topic. But here you go. Lindsey Graham today said that Judge Cannon's decision is right on the law and makes sense to me.

Which is weird, AG, because in 2017, Graham co-sponsored a bill to protect special counsels from executive interference. And he specifically called for a special counsel outside the DOJ to investigate Hillary Clinton's email. So it's okay, I guess. It's okay as long as the special counsel is investigating Hillary Clinton.

God, does he even remember the stuff that he says? This is recent. I mean, you know, I mean, I guess, you know, 2017 was a while ago, but the, but like this isn't Nixon. Come on. I don't think it doesn't matter. I think that, yeah, I think that it just doesn't matter. The old, you know, in the olden days, ye olden times to be accused to be being a flip flopper was like, that was bad stuff. It was bad stuff. You remember that's what George Bush used to say about Bill Clinton. He being a flip-flopper was like, that was bad stuff in politics. It was bad stuff.

You remember that's what George Bush used to say about Bill Clinton, he's a flip-flopper. Yeah. Now you can flip and flop all you want, makes no difference, there's no memory of anything. Nobody has time to cover it because, you know, gestures broadly. There's so many other things going on.

But I also wanted to, before we got out of here today, I noticed, and I know you noticed this too, that not only did Judge Cannon cite Clarence Thomas's concurrence, which was, you know, dictum in her 93 page ruling that just, it goes all over the place. It's very hard to follow. But also she cites a lot of the other conservative justices. Oh yes, she does. Doesn't she? Oh yes, she does.

In fact, on page 11, she cites one Brett Kavanaugh in a law review journal from 1998. I guess when you are looking to avoid having to refer to the unanimous Supreme Court decision in US v. Nixon, you just turn instinctively to law review journals written in 1998 You just turn instinctively to law review journals written in 1998 by then young lawyers who are now prominent conservative justices on the Supreme Court. And on page 17 in the... Oh, and by the way, that Brett Kavanaugh law review article, he was recommending that Congress amend the statute that authorizes, that would authorize the president to appoint a special counsel with advice and consent of the Senate.

Right. Which is actually a lesser degree of congressional input because advice and consent is not approval. You don't have to vote. I don't think. I think advice and consent is a little bit quicker. It's not quite the same excoriation of a full blown hearing. Well, I thought it just meant you have to pass a law or confirm or whatever. But I think it's, you know, you clearly see the direct, I haven't read that law review

article and I absolutely will not. But I think that- You're not going to go out for your free time and read a 1998 Kavanaugh article? I don't think so. I tend only to read Kavanaugh post-98. Oh, I see. I think that's the direction he's going, is trying to make it easier to appoint special counsels.

But in any case, and then flash forward to page 17, where she has another footnote that says, see Amy Coney Barrett, Substantive Cannons and Faithful Agency. Yet another law review article, this one from 2010, at least it's in the right century. And the piece in that article that Judge Cannon is citing is actually something that Amy Coney Justice Barrett was citing one Neil Gorsuch.

So that was a two for one pandering. That's two, you get two in the same footnote. And I've got an Alito reference here on page 87. The appropriations clause, this is where she's talking about the money, that's moot, but she's going to talk about it anyway. The Appropriations Clause plays a critical role in our constitutional scheme of separated powers. It is Congress, not the executive or judicial, that controls government spending. Any exercise of a power, quote, granted by the Constitution to one of the other branches

of government is limited by a valid reservation of congressional control over funds in the treasury. As a historical matter, Congress's power over the purse has been the most complete and effectual weapon to ensure that the other branches don't exceed or abuse their authority. And that's Alito in the CFPB case, which he, and that's a concurring opinion. You know, that's the Consumer Financial Protection Bureau and you know, they were trying to say that it was inappropriately funded. And as we know, special counsel is funded by a permanent fund in the US Treasury, right? So that's kind of where they're coming at from this. So there's, I found an Alito and we got a Gorsuch and we got a Barrett.

Bingo. Just sunk my battleship. And we got the Kavanaugh, but we don't have a Roberts, which is interesting. I don't, I didn't see one. I'm gonna have to go back and do some text searches. But yeah, if you want to play Supreme Court Battleship, then you can, as you find other sites to our conservative majority on the court, please send them into the question line. Right. And she did quote Kagan? All right. On the appropriations in a footnote. It's name dropping on both sides, right? You want to put as many as you can in there

because under the assumption that all your decisions are probably going to be reviewed. But no Soda Maior, and I'm looking for Jackson. No, no Jackson. No Jackson. Well, there you go. It is in some ways, it's a incredibly frustrating result. It's tough to read,

but there's some fascinating little nuggets in there. And I guess my overall sentiment is, I think that the special counsel's office is doing the right thing by appealing it. I hope they add the request for removal and I think that there's there are good cases to be made on both of those both of those fronts so we're gonna hang in there and see where it goes. I bet we'll see it maybe by the time we record the regular episode on Friday. If not we'll definitely cover it on the subsequent week

or weeks depending on when this filing from special counsel comes out. It's possible the first thing we'll see is just a notice of appeal and then the briefing schedule kind of follows that but we'll see what happens. Yeah, we definitely will. And of course, we'll be loathe to cover Trump's response, but we will here on the Jack podcast. Thank you again for listening and supporting the Jack podcast. I know there's a lot of noise in the media out there right now. And so I think I can speak for both of us, Andy, when I say we're just really honored to be able to bring this important news to you in these extremely important times. And you know, we'll be back on your ears on Sunday.

Do you have any final thoughts before we get out of here for the week? Yeah, just I echo your sentiments, Sarah. I think it's a total privilege that people rely on us as a source, as a reliable source for this information. and so deeply appreciate that. And also been a really tough couple of days with all the events over the weekend and everything and I know that it's a lot of stress having to kind of like constantly reevaluate the state of the world like every 15 minutes as these things like this happen. And it's a good time sometimes to kind of tune out a little bit and take care of yourself. You know, step away from

the flame if you find that coverage of all this stuff like the attack over the weekend and everything else really can be a little overwhelming. So kind of keep an eye on how you're doing out there. So kind of keep an eye on how you're doing out there. Yeah, 100%. Listen to your mindfulness. Practice some mindfulness. And get out there and do something that's fun. For me, appealing to the 11th circuit is fun, so I'm covered. You're good.

You're loaded. We'll see what happens. I know that it's hard to put positive spins on any of these things that are going on. But with this, this in particular, we do get to go to the 11th. We will get to see an appeal and we'll bring it to you here on the Jack podcast. Thank you so much again for listening. I've been Alison Gill and I'm Andy McCabe.