Jack - Episode 87 | Appeal Primer

Episode Date: July 28, 2024

This week we go over what Jack Smith’s appeal to the 11th Circuit will look like and why Judge Cannon will likely be overturned.Donald Trump threatens to sue DoJ for violating his Constitutional rights. Plus we take some listener questions. Professor LedermanUnited States v. Nixon at Fifty: Why Judge Cannon Is Wrong About the Attorney General’s Authority to Select a Special Counsel  Questions for the pod Submit questions for the pod here https://formfacade.com/sm/PTk_BSogJ  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 episode 87 of Jack, the podcast about all things special counsel. It's Sunday, July 28th, 2024. I'm Alison Gill. And I'm Andy McCabe. All right. We have a lot to cover today. Do I ever say, okay, really not much fruit on the tree today? No, never. Because there's always something to cover. And today we have Donald Trump threatening to sue the DOJ for indicting him. That's a

good one. And of course, we'll update you on the status of Jack Smith's appeal to the 11th Circuit of Judge Cannon's dismissal of the Florida documents case. Yes. And this episode is going to get weedy and wonky because we're going to look at the possible arguments that Jack Smith's team, the Department of Justice, might make in their appeal to the 11th circuit and when that appeal, at least for now, must be filed. But first, it's time for another installment of Good Week, Bad Week. So on last Sunday's show, I said, who knows what could possibly happen this week, but it's going to be big.

I'm sure it's going to be big and we'll talk about it next week. So good week, bad week for Trump. Andy bad week, bad week, bad week for the Trump man. Yeah, man, this game changed on him quick, right? Ooh, boy. Yikes. I mean, changed on everybody. It's like, we seem to cram like years worth of news

into a couple of days now, but certainly coming out of the convention, riding high on surviving the assassination attempt and what they thought, I guess, was a successful Republican convention, only to have President Biden really steal the thunder and step aside. He sure did.

Yeah. And so that was like earthquake-y enough. But then we had this massive groundswell of support that emerged very quickly and brought its money with it behind Kamala Harris, which is like injected this level of enthusiasm and excitement into the campaign that we really haven't seen so far. So yeah, not a great turn of events for the former president, an amazing speech by the current president. I honestly like I watched the whole thing kind of in silence I couldn't look away and I was just really stunned. I really feel like it's the kind of thing that like people will refer to and study like the

decision that he made in like leadership classes decades from now. I really feel like it was such an example of like selfless leadership that I think the guy really deserves a ton of credit for doing a very hard thing. Yeah, and I think it'll be studied in history as well as a speech on par with, you know, what George Washington did with his peaceful transfer of power speech. And we

don't have a recording of it. He might have done a horrible job with that speech. I don't know. So it's the content of the speech that survives. Right? As far as we talk about where history is concerned. And this was up there. And it just keeps sinking in, the selfless act. The transformational leader, he's a selfless leader, whereas Donald Trump is a selfish transactional leader. And that was one of the first things I thought of, all those effing leadership courses I took, Andy, when I was getting my master's in business administration

and my PhD, the different kinds of leaders, right? There's expertise leaders who just, you know, by the sheer volume of stuff they know, become a leader. There's rank leadership where like if you're in the military, you're a leader because you outrank me. Not because of anything special that you do. Then there's rank me. Yeah, not because of anything special that you do. Then there's transactional leadership and there's transformational leadership. And I think we see huge, if not probably, I mean, if you were going to put a scale out of one to 10, I think Trump and Biden would be on the extreme sides of that scale considering what he did. But yeah, Sunday morning was, it was a roller coaster, like a lot of heartbreak. But then, like you said, the groundswell of support. Black women had

a call, 44,000. They raised 1.8 million. Then black men for Kamala had a call, 42,000. They raised 1.2 million. I was on a call last night. White women answer the call. We had 200,000. We broke a Zoom record. And so far we've raised $8.5 million. Just from that call alone. And all the endorsements coming all at once instead of dripping out over the course of a year or a year and a half. I think I think all elections should start in July. Totally

agree. Save us from this fate. Come on. Like it can happen. You can do it. It's fine. You know, it's a scramble, but that's the way it should be. But I think you hit the nail on the head with the stuck with JD Vance thing. Cause John Fuglsang and I were discussing this prior to, to Biden's exit where he's going to wait, he has to wait until after the VP, his VP is picked and after his Republican national convention, then, and only then if Biden decides to drop out, will he drop out and then bam Sunday with COVID from the White House in a letter. And then he came out and delivered that speech. Really, really incredible week, just this past week.

So me last week on the show saying, who knows what could happen? Well, lots. There you go. Couple of things happened. And lots has happened. So Jack Smith though, regular week. Regular week, same old, same old, trying to fight his way out of the trenches. This is like trench warfare that he's in here. Literally fighting for the life of his case in Florida.

And then of course in DC, which the fight there is not, we haven't hit the green flag yet and started throwing shots at each other, but that's coming. It's just a matter of time. So unfortunately our man Jack is really backed up against the wall, I think in both cases. Um, and so it'll be, we'll have a lot to talk about going forward, but right now we're in a little bit of this lull before the storm, which is good that we're taking it, taking the chance to kind of reset and think about like what, how he he's gonna approach this question with the 11th circuit

Of course, we do that with the with the help of some Pretty astute folks who've written things about it. So we'll get into that too. Yeah, brilliant legal minds constitutional scholars law professors, etc and You know not to mention not to like why I don't want to forget to mention people like Norm Eyes. Like I learned when I got my PhD, Andy, that most of my opinions, first of all, I'm like hesitant to make an opinion unless I have a two foot tall stack of articles that I can cite for the basis of that opinion. But all of what we're going

to go over today, which again, it gets in the weeds, we're going to get into statutory considerations regarding his dismissal, the dismissal of the Florida case. But all of the information is coming from truly high-level experts, and we're going to deliver that information. We may have some speculation on it, but we wanted to give the facts to you so that you can mull it over yourself and decide where you think things are at and where they might go. And so that's kind of the purpose of this episode.

And you're right, Andy, being in limbo right now on both of these cases, it gives us a really good chance to take a deeper dive into this dismissal for, you know, Jack Smith not being appropriately appointed or funded, even though she didn't consider the funding, but she talked about it for a long time anyway. But it gives us a really good chance to stop, take a breath as we ride the Kamala Harris roller coaster of awesomeness and discuss what the nitty gritty statutes

are that back up Jack Smith's appointment. Do you know what I'm saying? Definitely. It'll give us a great context when we finally get some briefs and ultimately an opinion from the 11th Circuit. It'll give us a great context when we finally get some briefs and ultimately an opinion from the 11th Circuit. It'll give us a great background and context upon which to kind of assess how each side did. So yeah, let's dive in. Yeah. I did that today in the Alvin Bragg Manhattan DA case, which is a case we usually talk about

over on Clean Up on L45 with Pete Strzok. But you know, we had, I had assumed that Alvin Bragg would argue that first of all, nothing in the hush money case was, could possibly be considered an official act. And number two, when you appealed, or when you filed for immunity in that case, you didn't, you abandoned the appeal, right? How many times have you and I, Andy, talked about the fact that some of these pretrial motions might seem ridiculous, but they become placeholders that allow you to appeal if you're convicted. Yep. Right. And so during the the hush money

election interference trial, Donald Trump didn't either didn't appeal or didn't even make. Well, he didn't appeal. He abandoned his appeal when he lost his immunity motion. Because he wasn't filing for immunity like, you can't, I'm totally presidentially immune. He was saying some of this evidence is part of official acts and I'm immune, so you can't use that evidence. But basically the way that it, we were thinking it would roll out was that because he asked for immunity for that evidence, and then when it was denied by the court, he didn't appeal.

And so therefore, you abandon your right to appeal it after you're convicted. Now, a different set of circumstances has gone down since then. But I just thought it was an interesting way to think about why these pre-trial motions happen when they do and how they can apply to an appeal later on. But that was sort of what I was going over. Yeah, I read that. In the Alva Bragg case. I read that probably an hour ago. And I think it's, I think you're right to think of it that way.

It's also important to put it in a little bit of a framework like these rules seem kind of very procedural and kind of persnickety a little bit. Oh, you didn't say it before, you can't say it now. But it's absolutely essential to keep the whole process moving. If you let people just keep bringing stuff up again and again and again, or bringing

things up that are essentially out of time, should have happened earlier, now you're trying to do it later, you're constantly giving the defendant an opportunity to throw roadblocks in the progress of the case. And the system can't work that way. And, you know, New York City, criminal courts, they're cranking out cases every day, you know, dozens and dozens of hundreds of whatever. So, yeah, they follow these rules pretty carefully. And I think it'll be a big factor in his appeal up there. Yeah, but there was a cool third thing that we didn't consider. So, you know, we were saying these aren't no way these could be official acts. These are private acts in the hush money election interference case. Number two, you failed

to appeal. So you've kind of abandoned them. And number three, that that Alvin Bragg brought up that I talked about, you know, I wrote about it on Substack. We'll talk about it on CleanUp on F-45 that I hadn't even considered is that there's you have it has to if it's harmless that this evidence Came in to the conviction then it doesn't matter anyway. It's like the ultimate even if you know, I talk a lot about even ifs The ultimate even if even if you think that all of this evidence is should be thrown out and he's immune It doesn't matter because the pieces of evidence that Donald Trump is contesting as being immune would not have an impact on the jury's ability to find him guilty on all counts. So it's going to be interesting to see how the judge rules. Norm Eisen is under the impression that, you know, as soon as

Donald Trump files his opposition or his reply, I should say, because he filed the initial and this is the government's reply itself. But as soon as he files that, the judge will take however much time he needs to make a decision and render a decision. He said by September 7th or 9th, I can't remember which one, but I think the sentencing will go forward in mid September. I don't think that any of Trump's arguments are going to prevail. But also just very, very interesting how this immunity decision, as much as we talk about

how it impacts the Jack Smith investigation or investigations, plural, it also impacts the state investigations. Yeah, totally. Totally. When the Supreme Court comes out with a decision that upends our view of the law, creates all kinds of issues, it applies everywhere. If it's a constitutional issue, obviously defendants can raise those in the state courts and ultimately seek relief from the Supreme Court.

If those appeals don't go their way, you can expect that Trump will do that here eventually. But I don't think that that process will forestall the sentencing. He'll be sentenced. If he's sentenced to some form of incarceration, it's possible that that will be suspended until the appeals are resolved. I think that's likely. But nevertheless, the sentencing is important because it signals the end of the criminal case as it stands right now in front of Judge Mershon. And I'm sure he's anxious to end this thing and move it along. Go away, case. Yeah.

It's hard to wrap up a case with Donald Trump. Let's just... It just never goes away. I don't know if you know anything about that. Yeah, a little bit. Yikes. All right. Well, we're going to get into the weeds here, but this week we did get the official notice

from the 11th circuit that the appeal of Judge Cannon's dismissal has been officially docketed and the special counsel has not yet asked for an expedited briefing, Andy. But the 11th circuit has issued an order with the normal briefing schedule per the rules, right? The regular rules. It's like if you don't get an expedited briefing, this is the briefing schedule. As it stands, according to the order from the 11th circuit, Jack Smith's appeal brief is due by August 27th, about a month from now. Now, once Trump is served with that brief, not when it's filed, but once it's served to him, he has 30 days to respond. That would push that out to September 26th. That's if and only if Jack Smith files on August 27th. And then if special counsel wants

to respond, he has 21 days to do so. So the issue would be fully briefed no later than October 17th. And as we explained during the previous episode, and as I just mentioned, special counsel need not take the entire time granted. So let's say Jack Smith files his brief Wednesday, July 31st. Trump has 30 days from the service of that filing. And that would be what? August 30th. And then special counsel doesn't need to take the full 21 days to reply.

So even if we don't get an expedited request and that request is granted or whatever, without an expedited appeal, we could be fully briefed in September, if that makes sense. Yeah, it's certainly a possibility, but I think it's still possible he'll ask for an expedited schedule. So I hope so. Because Jack's going to file as fast as he's going to file with that with an expedited schedule. So, you know. I hope so. Because Jack's going to file as fast as he's going to file with an expedited briefing or without. The question then becomes, does Trump get 30 days to respond? Right?

And I think Jack Smith will ask to give him two weeks, and then maybe the judge will give him three weeks, because they like to split the baby like that. But I'm sure Trump will use the entire time of whatever he has been granted to respond. No question. Even if they stay on the normal schedule and he gets his 30 days after being served with Jack Smith's brief, I wouldn't put it past him to go in and ask for more time. Yeah, he will. We're running for president. We don't have time for this.

It's a lot better, you know, whatever. He will. I'm appealing my conviction in another jurisdiction right now. And that's a Bove, and he's my guy here for this, you know, that definitely will happen. I don't think they'll really give too much credence to it. They might throw them a couple extra days to like a shut up gift, but, you know, the appellate courts are, are pretty rigid in how they do their business. And they, I think they kind of take a, you don't have to be here approach you. So, you know, it's, uh, this is, this is your thing, man.

Yeah. These are our rules. If you don't like them, you go to a different McDonald's or something, whatever. So this is a Wendy's. And keep in mind, the 11th Circuit does not assign the panel of three judges until after the issue is fully briefed. All the briefs are in. And right now, no oral arguments have been scheduled because we don't know how long Jack

Smith is going to take. We don't know if he's going to ask for an expedited appeal. It's just too early to schedule an oral argument So we're gonna break down what special counsel may argue After this quick break, so everybody stick around. We'll be right back Welcome back. Okay. This is where the show gets a little into the weeds on the arguments special counsel might make in their appeal brief and how Judge Cannon got her ruling so far off the mark, wrong on the law. So here's what Marty Liederman writes for just security.

Marty Liederman, by the way, is a professor at Georgetown University Law Center. He was deputy assistant attorney general in the Department of Justice's Office of Legal Counsel from 2021 to 2023, and also in 2009 to 2010. And he was an attorney advisor in OLC from 1994 to 2002. So really one of the people around who's got the most experience in that office and to remind folks, those are the lawyers for the lawyers. That's where the Justice Department decides the legality of policies and things that the president wants to do. If the president wants to initiate hostilities in a foreign country, they will often go to DOJ and say we'd like an opinion as to the lawfulness of this proposed plan and that's who write researches and writes

those those long policy papers. They're not law because these are not judges in a court, but boy they're pretty close and they are treated like gospel by the DOJ and typically by presidents. Yeah. So think about when Bill Barr went to his office of legal counsel and asked for a memo saying that Donald Trump was not guilty or wouldn't be prosecuted for obstruction of justice even if he weren't the sitting president. And of course, they obliged. And we got to see a good chunk of

that memo, thanks to, was it Judge Beryl Howell or was it Amy Berman Jackson? One of them was really upset that the DOJ was trying to hide that memo. But it's also the legal counsel memo that likely made it impossible for Merrick Garland to charge Donald Trump with obstruction of justice because the office of legal counsel determined that as because he was president at the time, you can't and that in general, you can't obstruct justice in this particular case unless there's an underlying crime, which of course is BS. But it would be very hard for Merrick Garland

to bring those obstruction charges because Donald Trump would run in with his golden ticket OLC memo saying, ah, na, na, na, your Department of Justice said I can't be prosecuted. And it would get dismissed 10 times out of 10. I think- I mean, typically what happens, like, infamously around the torture memos, so in the aftermath of 9-11,

when the Bush administration wanted to take some very controversial actions overseas with suspected terrorists, they went to OLC. And OLC wrote them a whole list of memos that basically said, no, it's OK to do all these things. And then years later, they completely 180'd it and said, no, that's all torture that shouldn't have happened. And it's prohibited by the Geneva conventions and stuff like that. So OLC is not without a history of, you know, countermanding their prior directions. But nevertheless, Lieberman is a guy that's been there a lot.

So he's a pretty well-known constitutional lawyer. So he writes in this piece for just security, he writes, Trump's motion and Judge Cannon's opinion are styled as if the question is a constitutional one, namely, whether the attorney general's appointment of the special counsel violated the Appointments Clause of the Constitution, which of course is at Article 2, Section 2, Clause 2.

But as Judge Cannon herself acknowledged on page 3 of her opinion, in truth, it's not a constitutional question at all. The Appointments Clause provides that the head of a department, such as the attorney general, may appoint what the clause refers to as an inferior officer. Judge Cannon assumed, correctly, that the special counsel is an inferior officer, at least as a matter of governing precedent. Accordingly, even if we assume that Attorney General Garland appointed Smith to an office, the method of appointment here complied with the appointments clause. So what he's talking about here is the difference between appointing an officer and creating

an office and filling the vacancy of the head of the office. That's right. Okay. So if it's not a constitutional question, then what is the legal basis for Judge Cannon's dismissal? As Judge Cannon concedes, the determinative question is a statutory one, namely whether Congress has given Merrick Garland the power to appoint someone outside the government to prosecute Trump.

Now, both sides, Trump and Jack Smith, agreed that if Garland lacked the statutory authority to appoint Jack Smith, that would resolve the whole question, regardless of the appointments clause. He wouldn't be there, okay. But no one's arguing that. No one is arguing that Garland could have appointed Jack Smith without statutory authority to do so. Nobody's saying that.

And it stands to reason that if he does have statutory authority, then the appointment is constitutional. So what gives Garland the statutory authority to appoint a special counsel, Andy? Well, this is where Professor Liebman breaks it down into two categories. One, the attorney general had statutory authority to hire Jack Smith to work in the Department of Justice, which Trump does not contest. And two, the attorney general also had authority to assign the supervision of the two criminal cases to anyone working at DOJ.

That's the big one right there. Yeah. As you walk through this, it makes total sense. So, Leaderman goes on, as for the first, the attorney general had statutory authority to hire Jack Smith to work in the Department of Justice pursuant to 5 USC 3101. That law gives every executive agency the power to hire employees, including officers. And 28 USC sections 503 and 509 gives Merrick Garland the authority to perform virtually all DOJ functions, including hiring.

Now, Judge Cannon describes Smith as a, quote, private citizen exercising the full power of a United States attorney, but he is not. He is a DOJ employee hired by Garland to work for DOJ. Attorney General Garland's appointment memorandum specifies that Smith is, quote, to serve as special counsel for the United States Department of Justice." Close quote. Okay, so Garland can hire him and he hired him. Fine. Okay. So by statute, as you said, he can hire and because he's the head of the agency, he's allowed to hire people. And he hired Jack Smith to work for the DOJ. But what about the second proposition above, the one I said that's where all the marbles

are, that the attorney general has the authority to assign the supervision of the two criminal cases to anyone working at DOJ? The basis for that conclusion is a combination of two laws, 28 U.S. Code Section 509 and Section 510. So Section 509 says all DOJ functions are vested in the attorney general even where another statute specifically assigns a particular function to other DOJ officials. Now Section 510 says the attorney general had virtually unlimited power to delegate those authorities given to him in 509. It provides that the attorney general, quote, may from time to time make such provisions as he considers appropriate,

authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General. So by law, by statute, the Attorney General can hire people. All powers of the DOJ can be performed by the Attorney General. Any job, he can do any job in the DOJ. And anything the AG can do, he can also delegate to anyone else who works for the DOJ. And this is all despite whether any other law or directive assigns a particular function to a particular person within the Department of Justice.

The attorney general can override that and take that function for himself or delegate it to someone else. And Professor Lederman gives an example. Section 510 would have authorized Merrick Garland to assign supervision of the Mar-a-Lago case and any subsequent prosecution to an attorney employed in the office of the attorney general, the OAG, or to an attorney in the tax division, or he could give it to like a Jeffrey Clark over in the environment and natural resources

division. I'm glad you didn't do that. I'm really glad you didn't do that. Well, Clark is long gone, just about to be disbarred. But you get my point, right? I do. He can assign this to anybody who works for the DOJ. Yeah. So for example, for the past 17 years, the attorney general has exercised his section 510 delegation authority to assign supervision of criminal investigations and prosecutions involving national security related

offenses to the DOJ National Security Division, even though Congress has not vested the Assistant Attorney General for NSD with any statutory authority to prosecute criminal cases. So Congress essentially created the national security division and the assistant attorney general who runs it. Congress didn't give that person criminal prosecutorial authority, but the AG did. And it's fine. Yeah. Well, they had no complaint about the National Security Division running this up until Jack

Smith's appointment. Of course. So I mean, because the AG can delegate any task to any DOJ employee, he does have the statutory backing to do stuff that Congress hasn't specifically designated in a statute. Exactly. Exactly. And before Attorney General Garland appointed Jack Smith, the Mar-a-Lago investigation and the litigation

were supervised by National Security Division Assistant Attorney General Matt Olson, rather than a US attorney. Such NSD direction of the case was the result of Garland's authority under Section 510. He can delegate. He can do any function and he can delegate any function to anyone he wants in the department. Hmm, but yet there was no motion to stop Matt Olson from investigating. Of course not.

Or Chris Ray or literally any other employee except for some reason Jack Smith and we'll get into that. So no one had an issue with Matt Olson. That's pretty important. So if Garland had hired Jack Smith to work in the national security division and delegated the authority to oversee the case to him, Judge Cannon would be cool with it, I guess. That just shows how completely wrong she is on this. Yeah. I mean, like if he had just turned in an application one day to NSD, he got an interview and called up Matt Olson and impressed him, got the hire, then all of a sudden found himself in charge

of those cases, would have been totally fine. But Judge Cannon appears to concede this point on page 24 of her opinion. Of course she does. Yeah. point on page 24 of her opinion. Of course she does. Yeah, so there she writes that section 510 gives the attorney general the flexibility to authorize existing DOJ officers, employees, or agencies to perform the functions of the attorney general consistent with the nature of those functions.

In fact, throughout her opinion, Judge Cannon acknowledges that Attorney General Garland could have assigned the authority in question to any already retained DOJ attorney. So if that's correct, and it is, then Attorney General Garland could have authorized Smith to handle the Mar-a-Lago case had he done so, let's say, five minutes after hiring Smith to work at DOJ. So it's a five minute rule that makes this unconstitutional, I guess. And how long?

Like, what do you have? Like, what's the... That's... Wow. Yeah. So Judge Cannon's holding that Section 510 is inadequate in this case, then, appears to be premised on her assumption that Congress has insisted upon some waiting period, no matter how brief,

between the act of hiring an individual and the act of authorizing that DOJ official to supervise a prosecution. I have to say, this has been lurking. It took Mr. Lederman's writing and his structuring of this whole thing to kind of open my eyes. But in the back of my mind, since I've been reading these motions as they were originally filed, I've had this nagging like idea that like, but why isn't he just an employee? Like I don't get it. Why, why, why are they going to all this trouble to say he's an officer? He's not an officer inferior, whatever. Isn't he just a simple Joe that works at DOJ? And that's basically what Lederman is pointing out here.

I mean, for real, like I guess because he hired him and appointed him at the same time, in the same memo, like if it were one memo, two memos. How could that possibly be significant? But her 93 page opinion boils down to that. So 509 and 510 would seem to be enough to give Jack Smith statutory authority here. Just that, just what we've just talked about. But Cannon spends a lot of time on sections 515 and 533 sub 1 of Title 28. And we'll talk about those after the break. Stick around. We'll be right back.

Hey everybody, welcome back. So before the break, we discussed how Title 28 of the US Code, sections 509 and 510, which Garland cited in his appointment of Jack Smith, are sufficient to establish congressional statutory authority for Jack Smith. Nobody circumvented Congress. Nobody messed up separation of powers. Nobody did anything without the advice and consent of Congress. This is by law as Congress Congress passed 5.9 and 5.10. Cannon's only argument is that he didn't wait five seconds or five minutes before delegating the authority. But let's move on to where Cannon spends most of her time, which are sections 5.15 and 5.33 sub one. So we'll start with 5.15, which says the attorney general or any other officer for the Department of

Justice or any attorney specially appointed by the attorney general under law may, when specifically directed by the attorney general, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought. That really went out of its way. Congress really went out of its way to kind of cover all the bases saying the attorney general or any other officer, especially pointed by the attorney general can do what Jack Smith does. Yeah, it's like this massive carve out in the normal function of things.

The normal function is US attorneys who are nominated by the president and approved by the Senate, they do this stuff. It's under their authority that people go in front of the grand jury, get indictments and arrest warrants and all that kind of stuff. What this law says is that any person essentially that the attorney general specifically appoints can do those things that a US attorney normally does. It's just a massive carve out. Yeah. And Professor Lienerman writes here, in other words, even though criminal trials are proceedings that United States attorneys are authorized by law to conduct, the attorney general himself can conduct such proceedings or specifically direct any DOJ officer or any attorney specially appointed by the attorney

general under law to conduct them. I don't know how you weasel out of that. Well, this is why no other court decided they needed 93 pages to come to the wrong result. All right. So subsection 515B in turn reflects a congressional understanding that such an attorney general may in some cases make such case specific quote special appointments to persons who weren't previously employed at DOJ. So 515 alone could give Garland the authority to point Jack Smith. Seemed though, I would think so. Yeah, but even if not the combination of 515

and 509 and 510 that we talked about earlier, you feel like you certainly got there with all those three. Mm hmm. Yeah. So now let's talk about another statute. The DOJ says gives it the authority to appoint Jack Smith and that is title 28 USC 533 part one. That says, quote, the attorney general may appoint officials to detect and prosecute crimes against the United States. Attorneys general did not invoke section 533-1 for special counsel appointments before attorney general Garland included it in his 2022 appointment memorandum for Jack Smith. For example, special prosecutor Leon Jaworski relied on it, however, along with other statutes in his Supreme Court brief in

the Nixon tapes case. And in the court's decision in that case, Chief Justice Berger identified section 533 together with sections 509, 510, and 515 as establishing that Congress has vested the Attorney General with the power to appoint subordinate officers, including the special prosecutor Jaworski to assist him in the discharge of his duties. And by the way, Andy, Concord management, remember them, the Russian troll farm? I do. Indicted by Robert Mueller made the same argument Judge Cannon is making when they tried and

failed to get Mueller booted as special counsel. But anyway, I digress. Professor Lieberman writes that he wants to focus on the following. He says, Judge Cannon insists that Section 533 sub 1's reference to the appointment of officials to detect and prosecute crimes against the United States does not authorize Merrick Garland to appoint someone to prosecute crimes. If that person would, by virtue of an assignment, be an officer for the purposes of Article 2's appointment clause. Wow.

Liederman disagrees for three reasons. First, although the term officials might be broader than the term officers, the term officials encompasses constitutional officers as well as mere employees. It's like everybody. Second, the prosecution of federal crimes is a significant governmental authority. And therefore, someone assigned to perform that function pursuant to 533 would virtually always be an officer for appointments clause purposes. It's like a definition of officer.

Yeah. And third, there's no reason to assume Congress had the appointments clause in mind at all when it enacted Section 533 or its predecessors going back to 1921. Therefore, the legislature's use of the broad and generic term officials wasn't designed to imply anything one way or the other about whether such officials might include DOJ actors who occupy constitutional offices and thus must be appointed in conformity with the appointments clause. It just doesn't even apply. Right. Right. And her discussion of that statutory term, however, reflects a related concern

that lurks throughout Judge Cannon's opinion, namely, her apparent view that even if Congress has afforded the Attorney General with the authority to assign a prosecutorial function to a DOJ personnel who would be deemed employees for the purposes of the Appointments Clause, Congress has not vested the Attorney General with the power to create a special counsel office in the constitutional sense, i.e. to create continuing DOJ position that must be filled in conformity with the appointments clause. That's really kind of resonating in the back of her head as you read that opinion. It's like there's some bifurcation there. She's focused on this kind of

creation of the office and he didn't have a law specifically empowering him to do that. Kaitlin Luna Yeah. So instead of what happened, which is him appointing a lawyer to delegate some stuff to, she's saying Garland created a position in an office and filled it with Jack Smith and that Congress gave no authority for him to do that, which doesn't comport with her other argument that you need to wait five seconds between hiring and delegating. It's just so weird. Yeah, that's right. And the attorney general does have statutory authority to create a new DOJ position that meets the conditions for an Appointments Clause office. And once again, the primary source of that authority is 28 USC 510, which provides that the attorney general may from time to time make such provisions as he considers appropriate,

authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the attorney general. So you have to wait five minutes, Andy. You got to wait five minutes before you do it. Five minute rule. It's not a five second rule either. Like the food off the ground is still good if you got it within five seconds. None of that applies here. It's just so bizarre. Yeah. And it's going to be really interesting. I'm really looking forward to reading the brief, the appeal brief again, due by August 27th as it stands now. Actually, let me go look at the docket real quick and make sure

that we don't have an update on a briefing. Nope, nothing. They have not filed for an expedited appeal as of Friday, July 26th at 3 PM Pacific time. But you know, if they do, we will tell you about it. But as it stands now, Jack Smith has until August 27th to file this brief. We will of course cover it here in detail. I'm assuming if he doesn't ask for an expedited brief, he's still gonna file faster than August 27th.

But I think we'll see a motion for an expedited brief. I'm not sure. Yeah, it seems like, you know, it's going to come down to how much time he thinks he needs to put the best work product forward. This is not a swing and a miss situation here. You want to hit that ball pretty hard. But I do think that this is really down in the weeds,

kind of statutory interpretation conversation, which I think is very helpful. But it's also helpful to like kind of step back and remember like this does not happen at the district court level. Like district courts do not engage in months long processing of motions, including oral arguments by amicus and all this other nonsense. And they don't write a hundred page opinions dismissing Supreme Court precedent.

Like that's not their job. They're supposed to look at the precedent and interpret it and apply it to the facts in their case. They're not, they don't, you know, it's hard to imagine like, what is she doing here? We, I'll hold on this for a minute because we had a bunch of questions that kind of got to this point based on something I said last week. So, as always, our listeners kind of had us with the best questions.

So I'll just put a pin in that for now and we'll get back to it in a few minutes. Yeah. And the reason, Andy, I wanted to go over all of the statutory implications, there's a method to my madness, believe it or not. What I was hoping to do is to prepare listeners for when the appeal brief comes out, knowing all of this information about these statutory, you know, congressional, you know, 533 and 509 and 510 and 515. Now that you know all this, I think that the appeal brief is going to be much easier to read. And I'm hoping you'll open it up as I will because I read Marty Liederman's article here. I'll be able to open that brief and go, oh, yeah, here's this.

Oh, there's the 509. There's the 510. Oh, yep, yep. And that sort of precludes that. And even if this, then that. And I think it'll give everybody a really great primer for being able to interpret what Jack Smith files when he files it. So that's kind of why I wanted to put this episode together the way that I did today Hey, well, we turned the entire audience into experts on 1512 c2 So I feel like this is this is ground we can take okay It's 28 5 5 0 9 5 10 and 5 33 so just carve those numbers into the back of your head Well based on the amazing questions we get from our listeners

I numbers into the back of your head. Well, based on the amazing questions we get from our listeners, I imagine that they're very interested in this kind of thing. And we'll get to those questions and one other quick story, but we have to take one last quick break. Stick around. We'll be right back. Hey, everybody. Welcome back.

We have one more quick story. I promised you this one's from Lisa Rubin at NBC. She says she writes for the MSNBC website, as many major news outlets continue to digest President Joe Biden's withdrawal from the 2024 race, and the Democratic Party's swift rallying around Vice President Kamala Harris as its standard bearer, you would be forgiven if you had turned your attention away from the person who commanded last week's news cycle, Donald Trump. But almost 24 hours to the minute after Biden announced he was leaving, Trump took to Truth Social on Monday with what could be a significant post of his own suggesting it's time to sue an unspecified.

When is it not time to sue for Donald Trump? Right. It's time to sue an unspecified them for illegally breaking into and raiding Mar-a-Lago in the wake of federal district judge Eileen Cannon's dismissal of the classified documents case, the espionage and obstruction case. and his post therefore begets two questions. She says one is Trump serious about a civil lawsuit against federal prosecutors and two assuming he is with that suit have any chance of succeeding. So she says let's start with whether Trump truly intends to sue a spokesperson for the

Trump campaign didn't respond to request for comment, but if past his prologue, yeah, he's probably going to sue. Remember, he sued under rule 53 to get a special master in this same case. Now, the second and more significant question is what a lawsuit would look like. Let's assume Trump is going to sue and that what he's after is damages, an award that would hurt and embarrass the government. Who going to sue and that what he's after is damages, an award that would hurt and embarrass the government. Who would Trump sue and what claims might he make? Ordinarily, under Supreme Court precedent, which let's just take that with a grain of salt for now, the federal government and its agencies are immune from damages unless they

waive sovereign immunity. Yet a federal statute, the Federal Tort Claims Act, does just that. It specifically allows lawsuits for torts such as false arrest, abuse of process, malicious prosecution, where those claims are rooted in the acts of federal investigative law or law enforcement officers. And under a 1994 Florida Supreme Court ruling, claims of malicious prosecution in the state require proof not only that the plaintiff here, Trump, obtained a dismissal in his favor, but that he also that the case was dismissed because of his innocence. We don't have that here,

right? Plus the plaintiff must also show proof that prosecutors lacked probable cause and acted with malice. By contrast here, the case was dismissed on procedural, not substantive grounds. And there are no conclusive judicial findings from the litigation that the search was inappropriate. In fact, late last month, Cannon found Trump failed to make even a preliminary showing that the affidavit submitted by the DOJ to get the search warrant contained any material false statements or omissions and that's a showing required to obtain any further hearing about the warrants propriety or you talk about Bivens right? Yeah so the other way he could do it is file federally in

what we call a Bivens suit and a Bivens action generally refers to a lawsuit for damages when a federal officer who is acting under the color of their authority allegedly violates the constitution. So essentially what you have to prove in a Bivens, they're very hard to prove. You've got to prove that a constitutionally protected right has been intentionally violated

by the federal officers involved. So it's that level of intentionality, like knowledge that what you were doing was going to deny someone this constitutional right makes the Biven suits very hard to succeed in. If you do succeed, there's damages at the end of that road for you. But I think it's, as you said, for the reasons you mentioned, and I think that earlier decision by Cannon essentially validating the sufficiency of the warrant puts this whole thing to bed. Even Judge Cannon thinks the warrant was chill.

So you brought up Bivens, but Lisa Rubin ended her piece saying, so should we take Trump at his word he intends to sue? Sure. But can we expect Trump to launch this newest legal effort soon, much less successfully? That's both more dubious and murkier. Yeah.

So thanks to Lisa Rubin. And of course, thanks to you, my friend Andy, for bringing up Bivens. Yeah. All right, let's get to some listener questions. And of course, thanks to you, my friend Andy, for bringing up Bivens. Yeah. All right. Let's get to some listener questions. And of course, if you have a question, there's a link in the show notes of this program that you can click on to submit your questions.

What do we have today? All right. So the first one, this is what I was alluding to earlier. There was a few questions that keyed off of some comments I made last week about how I thought that kind of Judge Cannon and the big 93 page ruling had been a bit crazy like a fox. And I actually went back and re listened to that episode just before this to make sure that I hadn't said something ridiculous because that's always possible. But what I pointed out was that all along

in the process of this motion with the crazy hearing and the amicus briefs and the amicus each get in a half an hour, it's just at each step when you kind of microanalyze each one of those like, she's crazy, why is she doing this? This isn't what district courts do. It's crazy, it's crazy, it's weird. When you read the 93 page opinion, it's like, wait a second,

she was intentionally doing this all along. My point is I think she was really trying to build the biggest, broadest record of materials, knowing that this would be a fight. First of all, I think she knew she was gonna throw this thing out from day one, at least as soon as the motion was filed. I think she has been working on this opinion for months

and knowing that the 11th Circuit will make their decision about the appeal based only on the court record. She tried to fill that record with every possible argument, case, anything she could, either in the ones that she put in her own opinion or the ones that counsel brought up in oral arguments or the ones that amicus brought up in oral arguments. So I do think that all these non-traditional things that she allowed to happen in the course of this moment, I think they were intentionally done

to provide more of a record that could possibly be used to substantiate and affirm her decision. Whether that works for her is a totally different story. My guess is no, but you know, we've seen crazy things happen here before. So that was my, I still believe that there's a bit of a crazy like a fox going on here. But the question we got, this one, I'll read Lee's. Lee says, Andy, of a crazy like a fox going on here. But the question we got

this one, I'll read Lee's. Lee says, Andy, your crazy like a fox comment in episode 86 has stuck with me, so I'd appreciate it if you two would spend a minute on the possible knock on effects of Cannon's recent instructions. I'm particularly curious about your thoughts on how her striking some of the comments from the indictment affected Jack's appeal. So that's kind of a different issue. And technically that ruling is not going to be at issue in the decision that the 11th circuit will have to render on Jack Smith's appeal of the dismissal of the case. But I will say it is kind of similar because all along in the pendency of this case, we've seen these interesting little things that she's done, like, you know, ruled for Jack Smith, but

in a way that's without prejudice, so issues can be brought up again. She's done crafty little things to avoid, like, teeing up something that Jack Smith would very obviously go forward and appeal. She couldn't avoid that with the dismissal motion. She knew that this collision was coming and so I think she built the record around that idea. But I think she's got, she has very little relevant experience. I think she's got very poor perspective on what she's doing and the way she runs her court is absurd. But she's crafty.

And I think she spends some time thinking about these things and writing these things as silly as they come out. I think there's something else going on here that isn't always apparent on the surface. Yeah. And as far as something like her decision to strike comments or to strike that paragraph from the indictment or to, I mean, any of the other decisions that she's made, I don't think that that will necessarily impact this appeal. The only thing I could see it impacting

is if Jack Smith were going to ask for a new judge, he might bring up all of those past things. Do you know what I mean? There's kind of death by a thousand cuts examples that he could go to. None of those were enough to like really make the case by themselves that she should be removed. But when you add them all together, it could be an overwhelming presentation to the court. Right. And I don't know enough to know whether that, if he was going to make a motion for

recusal, if that would come in the appeal here or separately. I honestly don't know. In my time covering the law, I've never seen anybody ask for a judge to be removed. I'd have to go back and research that and see what that looks like in an appeal to a circuit court of appeals. But I don't think that any of those past decisions or rulings, even if it's like her, you know, the one that they had to do a motion for reconsideration because she wanted to release witness lists, I don't think any of that would have anything to do necessarily with the narrow argument in this appeal, which is that Jack Smith was appointed appropriately. I think we're just going to kind of see those legal arguments there. But like I said, if he includes

a motion to recuse or he wants to get her off the case in this filing or in a separate filing, we could see stuff like that come up there, I would imagine. Yeah. So let's swing that into the next question, because I think it's very helpful. And this one comes to us from Mike. It's again, very similar to, we had a few questions all along these lines. Mike says, in episode 86, you referred to the appeal to the 11th circuit only admitting evidence that was already admitted in the documents case? Does Canon's secret docket complicate the definition of admitted evidence? Are filings to the secret docket but not made public admissible in the appeal? Thanks for the great pod. That's a good question, Mike. But I think the easiest way to answer it is, and maybe I should have been more clear

about this last week, the record on appeal for this dismissal will just be the matters that were raised on this issue. So it'll be the original motion from Trump, it'll be Jack Smith's reply, and then it'll be Trump's response to the reply or sir rebuttal, whatever they call it in Florida. And then of course, it'll be all these crazy things that we don't normally see, which is the transcripts of all the oral arguments. It'll be the actual amicus briefs that were submitted. It'll be the transcripts of the amicus presentations. And then it'll be this monstrous order dismissing the case that Cannon revealed. All that stuff is on the regular docket, so

there's not really a confusion or a problem with the secret docket. Now the secret docket stuff and the way she's handled that could very well become another argument that Jack Smith might make if he decides to press to have her removed. You know, we really don't know how far or wide he'll go in terms of his aperture, how many examples, and how many things he wants to raise, or how that gets raised, as you just said a few minutes ago. So it could be relevant in that context. But for the decision on whether to affirm or overturn the dismissal of the case, that'll

be a narrower set of information. Yeah, I agree. I don't have anything to add to that answer. So, um, I will read one final question for us. That's from Panda Jan. There you go. Panda Jan says most wise and knowledgeable team who are also very pleasing to the eye have a question.

If the dismissal of the documents case stands, does this give Trump the opportunity to demand all documents be returned to his possession? Andy, what do you think? Andy Tate I say no. And here's why. The dismissal, if the dismissal stands, it's been dismissed on procedural grounds, essentially saying the guy who brought the indictment didn't have the authority to do so, so therefore the indictment is gone. That in no way changes the National Archives perspective on what constitutes a presidential record and what doesn't and where those things should be. And obviously it doesn't affect the classification of items. So all that stuff still stands.

I don't think he gets any of that back. Now, if he gets reelected, he gets anything he wants. He has unfettered access to any government material. And he could certainly ask for all that stuff back if he wanted to as president, and he would get it promptly. Yeah, but the 11th circuit has already determined that those classified documents belong to the government. They did that in the special master case.

That's why they vacated her ruling. Uh, and so I, yeah, I don't think, um, there would be anything. Like he, he could try. He might, it's always a good time to sue if you're trying to always, yeah. 11th circuit is not having it and neither did the Supreme court in that particular case. Yeah. He might. He could sue. It's always a good time to sue if you're Trump. Always, yeah. Eleventh Circuit is not having it and neither did the Supreme Court in that particular case. Yeah. So.

Good point. Yeah. I'm saying no, no on that. I mean, again, I don't put him, I don't put it past him to try anything. Of course. Yeah. Because, you know, we often say, oh, that'll never work. That doesn't mean he's not going to try.

Half the time it does work for him, even though it shouldn't. But no, like one, like 0.01% of the time it works for him. But you know, I mean, he did win that one case in 2020 where he wanted the election poll watchers to be able to stand within three feet of the tabulators instead of five feet because they made it five feet because of COVID. But these guys wanted to get sick, I guess. And so the court was like, all right, fine. That was the one case he won, that people could stand closer to people counting ballots. But that's it. Yeah. Yeah. Woo. Ray, for you. The other 62, no, sorry.

No, you don't. Sorry. There is no widespread voter fraud, no outcome-determinative voter fraud and nothing else that you sued for makes any sense. Oh, and by the way, all of your lawyers are either indicted, have pled guilty, are permanently disbarred or on their way to being permanently disbarred. And they have all been sanctioned as well. So thank you. Have a good day. That's what happens. I think I said a long time ago, hey, Mar-a-Lago is a magical place where people enter as lawyers

and leave as witnesses. It's just what happens down there in the magical land of West Palm Beach. All right. Thank you so much for your questions. These are always wonderful. They make me think so hard. So I really appreciate it. Send your questions to us by clicking on the link in the show notes to submit them. We really appreciate them. Andy, do you have any final thoughts before? I mean, I could say who knows what's going to happen this week, but I feel like I might jinx something. Let's just consider it a given every week. We don't know what's going to happen. There's going to be five more days.

Like it's a no hitter, right? Like just don't say anything. Padres pitched a no hitter yesterday against your Washington Nationals. Of course they did. Yeah. So I'll be joining you next week, same time, but from a different place. I'm going to be over in Paris watching the Olympics. Yes. Yeah, I'm super excited. And so I will be taking a break from Olympics fun and syncing up with you to do another episode.

It'll be what, episode 88? Yeah, we'll just have to put some French cafe music behind it. Yeah. You know, I think that'll be wonderful. put some French cafe music behind it. Yeah. I think that'll be wonderful. There you go. There you go. And just to tie my final thought here is a tad bit of breaking news.

Let me see what I can say and what I can't. Just a big congratulations to our friend Pete Struck, who just finalized a $1.2 million settlement with the Department of Justice over his Privacy Act claims. Nice. Good for you, Peter. High five. High five, Pete. All right, everybody, we'll see you next week.

And please know that there will be a Daily Beans bonus episode this weekend that's out now and then the Beans will come back to you in your ears, me and Dana, Monday morning. So we'll see everybody then and we'll see everybody next week on Jack. I've been Alison Gill. And I'm Andy McCabe. Transcribed by https://otter.ai