Government

Take A Wild Guess Which Federal Judge Is Hosting Amici At A Motions Hearing?

Take your time, NBD.

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Judge Aileen Cannon has outdone herself with her latest, cursed minute order.

The representatives designated in the respective filings (Josh Blackman, Gene C. Schaerr, and Matthew Seligman) will be permitted to appear on behalf of amici curiae and present oral argument at the June 21, 2024, hearing on Defendant Trump’s Motion to Dismiss the Indictment Based on the Unlawful Appointment of Special Counsel Jack Smith 326 . Approximately 30 minutes reserved for each. Seating to be reserved for representatives presenting argument.

In her endless quest to put the Trump docs case off until the heat death of the universe, or at least until Donald Trump gets elected and puts Special Counsel Jack Smith in jail, the jurist has come up with yet another exciting new stratagem.

Sure, any judge can slow things to a crawl by ordering extensive briefing and oral argument on even the most settled issues of law. But it takes a real galaxy brain to invite amici to weigh in not just in writing, but at motions hearings. And so, of course, that’s just what Judge Cannon did.

First, in a May 7 scheduling order, she explicitly invited the amici to seek leave to present at the June 21 hearing on Trump’s motion to dismiss based on the unlawful appointment of the special counsel. And then yesterday she made it official, inviting outside perspectives on the pressing and novel issue of “Special counsels, legal, or nah?”

The question would appear to have been resolved long ago. Indeed, Judge Maryellen Noreika at the federal court in Delaware rebuffed Hunter Biden’s motion to dismiss his firearm prosecution based on the appointment and appropriation of Special Counsel David Weiss out of hand, pointing to the defendant’s lack of standing to challenge the appointment, as well as the long history of special counsels who were “appointed since 1999 who were funded by this appropriation: John Danforth, Patrick Fitzgerald, Robert Mueller, John Durham, Jack Smith and Robert Hur.”

In a brief memorandum order in April disposing of the motion, Judge Noreika noted that Paul Manafort challenged the appointment of Robert Mueller and lost in both the Eastern District of Virginia and the District Court in DC. And she didn’t even require a hearing on the issue, much less the assistance of rando amici. (For some reason, the rando amici were much less interested in the case involving the president’s son than in the Republican demigod.)

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But Judge Cannon is built different, so when Ed Meese and a gaggle of FedSoc law professors ambled into her courtroom claiming that the special counsel is unlegal, she accorded them the utmost deference.

First past the post was former Reagan AG Ed Meese, a sprightly nonagenarian who has been lending his name of late to various wonky conservative filings. Along with Steven Calabresi and Gary Lawson, and the Citizens United Foundation (they do so much more than destroy campaign finance laws!), Meese argues that the special counsel has no prosecutorial authority because he wasn’t confirmed by the Senate.

“[O]nly a statute—not a regulation—is the kind of ‘law’ that can ‘establish[]’ a federal office under the Appointments Clause. And no statute creates a Special Counsel with the jurisdiction and authority Smith wields,” they insist, rubbishing 28 C.F.R. § 600.1, AKA the “Reno Regulation,” which authorizes Smith’s appointment.

They were followed by Professor Seth Barrett Tillman, on behalf the Landmark Legal Foundation. (Disclosure: Prof. Tillman has appeared on air with me multiple times and has always been very generous with his expertise.) Tillman’s position appears to be that Chief Justice Rehnquist was wrong when he wrote the 7-1 decision in Morrison v. Olson, finding that the appointment of special counsels is legal. This would appear to be an invitation to Judge Aileen Cannon, a US District judge from in the Southern District of Florida, on the bench for less than four years, to overturn Supreme Court precedent. YOLO!

At which point a massive cadre of “former prosecutors, elected officials, other government officials, constitutional lawyers, and organizations dedicated to the rule of law who have collectively spent decades defending the Constitution, the interests of the American people, and the rule of law” swooped in under the banner of the State Democracy Defenders Action Fund to argue that, no, laws work the way they always have, what are you even talking about.

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The Meese randos will be represented at the hearing by Gene Schaerr, of Schaerr Jaffe. The Tillman randos will be represented by Prof. Josh Blackman, of the South Texas College of Law. And Team WTF will be represented by Matthew Seligman, from Stanford and Stris & Maher LLP.

It’s a headscratcher!

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