Well, well, well. It seems that Smith and the DOJ may have to admit to committing the lesser of two evils. I pray she has the guts to force the issue. Thanks for providing the background and context.
"For his status to be constitutional — as an “inferior officer” not requiring nomination and Senate confirmation — he must be closely monitored and supervised by the Attorney General."
...
"SC Smith’s Office seems to have lost track of Rules No. 1 and 2 in federal criminal trial practice: (1) Only the District Judge wears a black robe in the courtroom. (2) Since 99% of a District Judge’s rulings are not reversed, revisit Rule No. 1.
Prosecutors who lose track of these rules tend to regret it. "
____
It seems to me an obvious question would be: Given the very real impact of this ruling in the DC jurisdiction and DC case; would the judge in the Florida documents case dare, or be less inclined, to rule in favor of the defense and the Meese Amicus briefing team and thus create a real challenge to the DC court's power to proceed and blithely ignore the issue of whether Smith is a legitimate SC?
I would think that a ruling must be made once an issue is raised, and arguments heard. She could be implicating the current administration, but discovery compelled by the defense includes emails of WH, DOJ, and NARA planning in 2021.
This response is from total ignorance. The judge's decisions should (I know..."should") be influenced by the law, not by the politics of the judicial system. Besides, the judge's decisions are reviewed by the eleventh circuit, not the DC circuit. They can "duke it out" on appeal between circuits.
Strategy and tactics involve more than just the rules of the game because, in any contest, there are almost always multiple levels of play. So, while the different circuits are separate what Florida does could, maybe not strictly in a legal sense but, could have an impact in DC. Especially when, in Smith, there is a factor in common between the two court cases, namely the person in charge.
If I were Smith, I'd be very concerned about being found to not be legally appointed by a Florida court... especially if the issue is then used to raise, again, the issue in DC.
The judges of either district are equals as District Court Judges (no matter I suspect the DC judges believe they are far more important), neither is superior to the other. She is required to make a decision in the extant case and will support that decision with (hopefully) completely factual citations of law and precedence (of the latter little to none exist). Piquet is correct there are two Circuit Courts involved with only one reviewing her decision in this case.
Suppose the Trump/Meese argument prevails and is held up on appeal (possibly to SCOTUS). What, if anything, would happen to convictions on charges brought against other people by other private citizen Special Counsels (e.g., Mueller)? Would those comvictees have any recourse?
They would all have grounds to seek to have their convictions vacated. Mueller is a different question since -- like Leon Jaworski -- he was at one time Presidentially appointed and Senate confirmed both as a DOJ Official and FBI Director.
This conclusion is irrational, Muller was appointed/confirmed under a different administration. No way was it intended that once an officer always an officer. If that were the case, why would Bill Barr have to have been confirmed by the Senate under Trump since he'd already been confirmed previously? (And hundreds if not thousands more such examples.) Yes it's different, but a difference without distinction. The Jaworski was a weak excuse for bad law using gang mentality.
I think that's more of a "next step" argument. First you have to settle whether it's a principal officer position requiring Senate confirmation, or just an employee..
I think then you can ask whether it's good enough that an SC was once a principal officer, or whether they have to be confirmed directly for this new office.
Ultimately, I don't see any way this Special Counsels are constitutional unless a) Congress creates a role of Special Counsel by statute, b) specifies the prospective officer must be nominated by the president, not the AG, c) the new officer is Senate-confirmed, and d) funding for the position is approved by either the new SC statute or directly by Congress,
Otherwise, he has the power to bring a presidential administration to its knees with zero accountability.
But that's the goal, isn't it? To hamstring the current president? At least, that's how it has almost always been used.
Confused: does she have to decide whether he’s a SC or Garland employee? Or is there some middle ground where she can say it doesn’t matter which one he is - allowing the case to move forward. And is this decision appealable?
I could be wrong, but this judge does not strike me as the type to opt for a middle ground of (essentially) "Do Nothing, ignore the issue raised and let the Circuit Court deal with it on appeal." I think, but not positive, that her decision would be appealable. It is an issue which will eventually need to be settled, likely by the SCOTUS.
Thanks Ship. Been wondering about that hearing and how you thought it went. I'm guessing she brought a stack of questions. If she rules against Smith this will have huge implications over many SC cases from here on out.
Also, Wonder why the SCOTUS kicked the can on the Trump immunity thing also. Haven't heard much but will they rule on it before leaving for break? That's the question I got.
Well done Ship! Hell if I didn't know better I'd say the scales are coming off regarding your DOJ being above reproach; you may soon even be able to see the EXTREME CORRUPTION!
And no snide remarks showing your jealousy of the BEST DAMNED REPORTER (that food blogger with a PACER account)!?!
Progress on 2 fronts!
But the editor need remains; If "[o]n May 5, 2024, former AG Meese..." the rest of the chronology makes no sense. Did you mean March 5?
Honestly, Smith seems to be practically goading the judge into accepting Meese’s argument and rule in Trump’s favor. Otherwise, she’s just validating every existing and potential future prosecutorial abuse. At some point, she has to stand up and say STOP. Smith may know his case is rubbish anyway, and he’d prefer the political firestorm coming from her ruling to actually proceeding with a case that won’t see trial till long after the election in any case.
It has been suggested that Hunter Biden has raised similar arguments regarding Weiss. Ship, because Weiss was an appointed and confirmed prosecutor, does that “fix” his appointment as SC in the Hunter case? Or is it still an appt under the Reno rules?
It's actually comical watching the SC talk out of both sides of his mouth, knowing that everything he tells the judge will get out to the public, and everything claimed to the public will reach the judge.
And all because this is "lawfare:" conducting legal cases as political warfare. The arguments that work in court don't always work in politics, and vice versa.
Well, well, well. It seems that Smith and the DOJ may have to admit to committing the lesser of two evils. I pray she has the guts to force the issue. Thanks for providing the background and context.
Thank you for this succinct version of ‘Federal Law for Dummies’.
Very nice write. The outcome will be historic.
Good read! Thank you.
"For his status to be constitutional — as an “inferior officer” not requiring nomination and Senate confirmation — he must be closely monitored and supervised by the Attorney General."
...
"SC Smith’s Office seems to have lost track of Rules No. 1 and 2 in federal criminal trial practice: (1) Only the District Judge wears a black robe in the courtroom. (2) Since 99% of a District Judge’s rulings are not reversed, revisit Rule No. 1.
Prosecutors who lose track of these rules tend to regret it. "
____
It seems to me an obvious question would be: Given the very real impact of this ruling in the DC jurisdiction and DC case; would the judge in the Florida documents case dare, or be less inclined, to rule in favor of the defense and the Meese Amicus briefing team and thus create a real challenge to the DC court's power to proceed and blithely ignore the issue of whether Smith is a legitimate SC?
I would think that a ruling must be made once an issue is raised, and arguments heard. She could be implicating the current administration, but discovery compelled by the defense includes emails of WH, DOJ, and NARA planning in 2021.
This response is from total ignorance. The judge's decisions should (I know..."should") be influenced by the law, not by the politics of the judicial system. Besides, the judge's decisions are reviewed by the eleventh circuit, not the DC circuit. They can "duke it out" on appeal between circuits.
Strategy and tactics involve more than just the rules of the game because, in any contest, there are almost always multiple levels of play. So, while the different circuits are separate what Florida does could, maybe not strictly in a legal sense but, could have an impact in DC. Especially when, in Smith, there is a factor in common between the two court cases, namely the person in charge.
If I were Smith, I'd be very concerned about being found to not be legally appointed by a Florida court... especially if the issue is then used to raise, again, the issue in DC.
The judges of either district are equals as District Court Judges (no matter I suspect the DC judges believe they are far more important), neither is superior to the other. She is required to make a decision in the extant case and will support that decision with (hopefully) completely factual citations of law and precedence (of the latter little to none exist). Piquet is correct there are two Circuit Courts involved with only one reviewing her decision in this case.
Suppose the Trump/Meese argument prevails and is held up on appeal (possibly to SCOTUS). What, if anything, would happen to convictions on charges brought against other people by other private citizen Special Counsels (e.g., Mueller)? Would those comvictees have any recourse?
They would all have grounds to seek to have their convictions vacated. Mueller is a different question since -- like Leon Jaworski -- he was at one time Presidentially appointed and Senate confirmed both as a DOJ Official and FBI Director.
This conclusion is irrational, Muller was appointed/confirmed under a different administration. No way was it intended that once an officer always an officer. If that were the case, why would Bill Barr have to have been confirmed by the Senate under Trump since he'd already been confirmed previously? (And hundreds if not thousands more such examples.) Yes it's different, but a difference without distinction. The Jaworski was a weak excuse for bad law using gang mentality.
I think that's more of a "next step" argument. First you have to settle whether it's a principal officer position requiring Senate confirmation, or just an employee..
I think then you can ask whether it's good enough that an SC was once a principal officer, or whether they have to be confirmed directly for this new office.
Ultimately, I don't see any way this Special Counsels are constitutional unless a) Congress creates a role of Special Counsel by statute, b) specifies the prospective officer must be nominated by the president, not the AG, c) the new officer is Senate-confirmed, and d) funding for the position is approved by either the new SC statute or directly by Congress,
Otherwise, he has the power to bring a presidential administration to its knees with zero accountability.
But that's the goal, isn't it? To hamstring the current president? At least, that's how it has almost always been used.
Thanks for this. Good to read more detail thancthe media chooses or knows how to report. I hope you do the same for the amici arguments
Is there any evidence that Jack Smith has been vetted for Top Security clearance?
Confused: does she have to decide whether he’s a SC or Garland employee? Or is there some middle ground where she can say it doesn’t matter which one he is - allowing the case to move forward. And is this decision appealable?
I could be wrong, but this judge does not strike me as the type to opt for a middle ground of (essentially) "Do Nothing, ignore the issue raised and let the Circuit Court deal with it on appeal." I think, but not positive, that her decision would be appealable. It is an issue which will eventually need to be settled, likely by the SCOTUS.
Thanks Ship. Been wondering about that hearing and how you thought it went. I'm guessing she brought a stack of questions. If she rules against Smith this will have huge implications over many SC cases from here on out.
Also, Wonder why the SCOTUS kicked the can on the Trump immunity thing also. Haven't heard much but will they rule on it before leaving for break? That's the question I got.
DDD
Well done Ship! Hell if I didn't know better I'd say the scales are coming off regarding your DOJ being above reproach; you may soon even be able to see the EXTREME CORRUPTION!
And no snide remarks showing your jealousy of the BEST DAMNED REPORTER (that food blogger with a PACER account)!?!
Progress on 2 fronts!
But the editor need remains; If "[o]n May 5, 2024, former AG Meese..." the rest of the chronology makes no sense. Did you mean March 5?
Honestly, Smith seems to be practically goading the judge into accepting Meese’s argument and rule in Trump’s favor. Otherwise, she’s just validating every existing and potential future prosecutorial abuse. At some point, she has to stand up and say STOP. Smith may know his case is rubbish anyway, and he’d prefer the political firestorm coming from her ruling to actually proceeding with a case that won’t see trial till long after the election in any case.
It has been suggested that Hunter Biden has raised similar arguments regarding Weiss. Ship, because Weiss was an appointed and confirmed prosecutor, does that “fix” his appointment as SC in the Hunter case? Or is it still an appt under the Reno rules?
It's actually comical watching the SC talk out of both sides of his mouth, knowing that everything he tells the judge will get out to the public, and everything claimed to the public will reach the judge.
And all because this is "lawfare:" conducting legal cases as political warfare. The arguments that work in court don't always work in politics, and vice versa.