Cannon Tosses Trump's Doc Case: Update of Post Below for S/C Smith to Win His Appeal

Those Highly-Classified Documents: They're all mine

(Ask SCOTUS & NARA: National Archives & Records Administration) 

Special Counsel Jack Smith may be able to reverse Judge Aileen Cannon's dismissal of Trump's Mar-a-Lago classified documents case, legal experts told Newsweek with this article headline:

“How Judge Aileen Cannon's Donald Trump Ruling Can Be Reversed”

On Monday night, the DOJ rapidly authorized Smith to appeal the decision to the 11th Circuit U.S. Court of Appeals.

Carl Tobias, a law professor at the University of Richmond in Virginia, said: “Smith can either file his 11th circuit appeal or he may appeal directly to the Supreme Court. He will probably rapidly appeal to the 11th Circuit and may attempt a direct appeal to the Supreme Court. The appeal will take a few months to have briefs and arguments in the 11th Circuit and then the loser will appeal to the Supreme Court.” Tobias then added: “If Cannon is reversed and Trump loses the election, President Joe Biden would be in a good position to decide whether to continue with the classified documents case, or not.”

Trump was facing 40 federal charges in Cannon's court over his alleged handling of sensitive materials seized from his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House in January 2021.

He was then charged with obstructing efforts by FBI authorities to retrieve them after and during their surprise search. 

Trump has pleaded not guilty and has said the case is part of a political witch hunt.

Greg Germain, law professor at Syracuse Univ. said: “Cannon's reasons for dismissing the case are extremely weak and that an appeal is warranted. However, given the current makeup of SCOTUS, it may not necessarily side with Smith. There is no way to know for sure what they will say given their extremely broad view of separation of powers in the Trump immunity case. There is a chance they will agree with Cannon that the broad unsupervised powers given to Smith are unlawful, and that the S/C regulation is overbroad.”

Germain then added that the Supreme Court or other appeal court may seek to rectify the legal situation rather than agree with Cannon's dismissal of the indictment saying: “The technical deficiency that has never before been identified by the Courts can be easily cured by appointing one of the U.S. Attorneys, who have been appointed by the President and confirmed by the Senate, to supervise Jack Smith in the case.”

Cannon wrote that both the appointment of Smith, and the funding of his office, were unconstitutional, and that a federal official should be supervising Smith's office as part of her decision was on a defense motion submitted by Trump's lawyers.

Cannon wrote in part: “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.”

My correction to that is seen here with this insert from Justice Clarence Thomas and that which follows – simply started: Cannon is flat out wrong. 

The Justice Thomas story is from USA TODAY:

Judge Aileen Cannon threw out the classified documents charges against Trump in his that long-running case and that may have been inspired by a legal aside by Supreme Court Justice Clarence Thomas two weeks earlier cite this: On July 1, Thomas joined the high court's conservative majority in dramatically expanding the scope of presidential immunity for crimes committed in office. 

Thomas also in his separate concurring opinion, lit the fuse on Judge Aileen Cannon's Monday bombshell dismissing the case entirely.

Thomas, the longest-serving Justice, suggested that the appointment of S/C Jack Smith − prosecuting both the classified documents case and a separate January 6 election interference case − was unconstitutional.

My other insert vis-à-vis charges by Cannon and possibly Thomas about S/C Smith being unlawfully appointed is false. That legal and historical background to that charge by those two and others is simply flat out wrong.

The Special Counsel law historical background:

Inspired in part by Watergate, in 1978 Congress passed the Ethics in Government Act. Title VI of this act was known as the Special Prosecutor Act and later renamed the Independent Counsel Act, which established formal rules for the appointment of a special prosecutor. 

The appointment of special prosecutors varied in important ways from appointments made before and since these ways:

1. Majorities of either party within the House or Senate Judiciary Committee could formally request the attorney general to appoint a special prosecutor on a particular matter, however, the decision of whether or not to appoint the independent counsel remained with the attorney general and was not reviewable in court.

2. If the AG decided not to appoint an independent counsel in response to such a request, they were only required to respond in writing with the reasons. Although the decision to appoint a special prosecutor was still made by the AG, the actual selection of the special prosecutor was made by a three-judge panel called the Special Division, selected from the Courts of Appeals.

3. The law did not allow special prosecutors to be removed except under specific circumstances such as wrongdoing or incapacitation. 

The special prosecutor provisions in the bill were temporary but were reauthorized by Congress in 1983 and 1987, expiring five years later in 1992; they were reinstated for another five years in 1994 before expiring again in 1999.

The constitutionality of the law was affirmed by a 7–1 decision of the Supreme Court in the case of Morrison v. Olson. 

Roughly twenty special prosecutors (called independent counsels after 1983) were appointed under the Ethics in Government Act (and cited above) and its reauthorizations in the Carter, Reagan, H.W. Bush, and Clinton administrations. 

Those included significant investigations into the Iran–Contra affair and Whitewater, the latter of which ultimately led to the impeachment of Bill Clinton over the Lewinsky scandal.

Noteworthy: Many smaller offenses (i.e., drug use) also have used S/C with no similar resistance from officials like Cannon, et al.

NY-based criminal defense lawyer, Paul DerOhannesian, said that no matter which way an appeal court decides, the classified documents case will not be heard before the 2024 presidential election, then adding: “Regardless of how an appeals court, and perhaps ultimately the U.S. Supreme Court, views the issue, there is not going to be a final decision until after November's presidential election. In effect it will be removed, or at least diluted, as a campaign issue, given the time it will take to wind through the appellate courts. As with some of the other prosecutions, it is worth wondering why prosecutors did not bring their case earlier, knowing there would be significant legal challenges and issues to resolve.”

FYI: Newsweek sought email comment from Trump's attorney and from Cannon's office on Tuesday (July 16).

My 2 Cents: All along I have said that this case at Mar-a-Lago is the most-serious of all as I have posted about it here (Cannon more delay); here (missing docs my major concern); and here (Trump asks: What documents?) – 

FYI: Some of my earlier posts may overlap previous ones – but, that shows how complex and this topic is, and Trump’s failure to comply with the law also is. 

All that above now reinforces my view and long years of experience handling highly classified materials, and I have not changed my mind in this case just because it involves the name Trump and now involves Judge Cannon’s seal of approve with her dismissal of the case.

Finally, and I seriously ask as many renowned legal experts ask and say with sound legal arguments on so many different pressing legal questions today and now more so on this case: “How can a District Judge – any District Judge and now like Aileen Cannon be so misinformed and lacking the sound and logical and rational judgement to make such a crazy decision that she made on such a critically-important national security case as she did for Trump?”

I believe she did simply to thank him for his appointment to the bench, and possibly pleasing him for a USSC court seat if he were to win back the presidency. It is truly mindboggling to the say the least. I also strongly believe she should be removed from the bench and never allowed to practice law again for her reckless and unsound decision that possibly if not truly already has damaged our nation’s security. 

Thanks for stopping by.