Judge Cannon Finds ONE WEIRD TRICK To Allow Trump To Steal Classified Documents
Well, living in a nation of laws was fun. But that's over now.
(Photo by Win McNamee/Getty Images)
Congratulations to Hunter Biden! Apparently, special counsels are illegal now, and so all his criminal cases must be dismissed immediately. What a lucky day for the president’s son!
Just kidding! Hunter Biden’s lawyer Abbe Lowell wasn’t crazy enough to argue before a US District judge that when 28 U.S. Code § 515 talked about an “attorney specially retained under authority of the Department of Justice … commissioned as special assistant to the Attorney General or special attorney” authorized to “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 didn’t specifically authorize the appointment of Special Counsel Jack Smith. Shoulda swung for the fences!
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Today Judge Aileen Cannon has taken it upon herself to overturn multiple Supreme Court precedents and declare special counsels UNLEGAL. Whether this was in response to the unsubtle nudge from Justice Thomas in the immunity decision, or just a wish to give Trump a gift as he goes into the RNC is unclear. But Judge Cannon has just decreed that Trump can get away with stealing classified documents and defying a government subpoenas because Congress didn’t vote to confirm the special counsel.
The arguments here are so gonzo that Trump didn’t even try them in DC. And where other defendants did raise them, they were dismissed out of hand. Judge Maryellen Norieka brushed aside a similar motion in the Hunter Biden case, and federal judges in Virginia and DC rejected challenges to the legality of Special Counsel Robert Mueller’s appointment when Paul Manafort tried to magic away his own charges.
In brief, Judge Cannon says that the special counsel’s appointment violates the Appointments Clause because he was not confirmed by the Senate:
The Appointments 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. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.
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Some might argue that 28 USC § 515 is just such a statute! But, see, that clause refers to a special attorney already appointed. It doesn’t actually authorize his appointment. So …
YES, I AM FUCKING SERIOUS.
Section 515(b), read plainly, is a logistics-oriented statute that gives technical and procedural content to the position of already-“retained” “special attorneys” or “special assistants” within DOJ. It specifies that those attorneys—again already retained in the past sense—shall be “commissioned,” that is, designated, or entrusted/tasked, to assist in litigation (more on “commissioned” below). Section 515(b) then provides that those already-retained special attorneys or special assistants (if not foreign counsel) must take an oath; and then it directs the Attorney General to fix their annual salary. Nowhere in this sequence does Section 515(b) give the Attorney General independent power to appoint officers like Special Counsel Smith—or anyone else, for that matter.
The secondary issue is the special counsel’s funding, which is currently drawn from an indefinite appropriation set aside to ensure that Congress couldn’t end an independent counsel’s investigation by defunding it. Recall that the Independent Counsel Act was allowed to lapse after the unpleasantness of Ken Starr’s investigation of Bill Clinton. But the funding statute says that the money shall be used to fund such an investigation pursuant to the ICA “or other law.”
But bootstrapping on her own holding that there is no law justifying the appointment of a special counsel, Judge Cannon finds that there is no “other law,” and thus the special counsel is DOUBLY UNLEGAL.
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Let us all savor the clanging irony of Trump screaming that Biden was personally directing this WITCH HUNT, and then having the case dismissed because the special counsel was too independent of the attorney general. And then let us mourn the end of a functioning democracy as we know it.
US v. Trump [SDFL Docket via Court Listener]
