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Split Thread Trump Document indictment (as opposed to other indictments)

JayUtah said:
ETA: The passages in the Thomas concurrence are on matters not brought before the Court, briefed, or argued.
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That's not quite true. This argument wasn't directly part of plaintiff's appeal, but the issue was brought before the court, it was addressed during oral arguments, and there was at least one amici curiae filing on the topic.

Hence they are what lawyers call "dicta," and not part of the legal reasoning in the case. Judge Cannon's use of Justice Thomas' dicta as justification for a sweeping dismissal of charges on novel grounds is just as shaky as it sounds.
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You are correct that his concurrence isn't binding, but if the legal argument is correct, it's correct whether or not the SC has ruled on it yet. What's the counter-argument that her ruling is wrong?
 
Ziggurat said:
This argument wasn't directly part of plaintiff's appeal, but the issue was brought before the court...
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No.

It wasn't raised in the questions presented. It isn't mentioned or even alluded to in any of Trump's argument briefs.

...it was addressed during oral arguments...
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Briefly and ham-fistedly. Apropos of nothing, Justice Thomas tried to make it happen, but it went no further than Trump's counsel saying they raised the issue only "indirectly." That's fairly generous—it's neither mentioned nor alluded to in any of their briefing.

and there was at least one amici curiae filing on the topic.
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Amicus briefs are filled with irrelevancies.

You are correct that his concurrence isn't binding, but if the legal argument is correct, it's correct whether or not the SC has ruled on it yet.
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Correctness in a legal ruling does not have the same objective value as, say, correctness in a scientific finding. A bunch of other courts have ruled on this same question. Were their arguments correct when they were made? Cannon says they aren't, and that she's correct. There is no objective correctness in law.

What's the counter-argument that her ruling is wrong?
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Shifting the burden of proof. Cannon is the one advancing a novel legal theory and basically saying a whole bunch of other courts got the same question wrong.
 
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Ziggurat said:
I think that's correct. But any decision to overturn her ruling at the Appellate Court is likely to be immediately appealed to the Supreme Court by the defense.
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The easy out would have been to just refile the case through the normal U.S. Attorney's office. But Smith has announced he will appeal, and that's likely because there's a sweeping legal principle at stake.

Dismissing a judge generally requires a conflict of interest (that Trump nominated her isn't enough) or some actual violation of the law, not just a bad ruling.
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The recusal of a judge pursuant to an appeal from a dispositional order is indeed a separate finding. You can combine the motions, but aren't required to. However, in this case the 11th Circuit has a history of questionable orders from Judge Cannon. Smith stands a greater chance of being assigned a different judge than a party in another more typical case would have.
 
JayUtah said:
A bunch of other courts have ruled on this same question.
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Have they? I'm not sure that's true. I think other courts have ruled on issues of special prosecutors, but not all special prosecutors are equivalent. The Hunter Biden prosecution was mentioned upthread, and there's a special prosecutor in that case too, but that special prosecutor (David Weiss) was nominated by a president and confirmed by the senate as a US Attorney, making him clearly an officer in accordance with the Appointments clause. Smith was neither appointed by the president nor confirmed by the senate. If the other cases to which you refer involved special prosecutors like Weiss (or special prosecutors appointed under the now-expired Ethics in Government Act) then it's not the same question at all.

Perhaps you can provide specific cases you have in mind so that we can compare. I've been looking at the Nixon case which seems to get referenced a lot, but as far as I can tell, the fights in that case were about the subpoena powers of the special prosecutor and the jurisdiction of the courts to step into what Nixon's lawyers argued was intra-executive conflict that the courts had no say in. I can't find any reference to that case being about the validity of the appointment itself, so I'm not sure it actually acts as precedent here.
 
JayUtah said:
No one questioned the legitimacy of the appointment. If it's a threshold question now, it was a threshold question then.
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The courts aren't generally going to rule on an issue that isn't brought before them. If it was a threshold question then but nobody raised it, then there's not going to be a ruling on it. Nnone of those past cases are relevant precedent if they didn't address the issue. And as far as I can tell, they didn't. So that's what I'm asking for: are there any actual precedents for this issue? I can't find anything that looks like it. And if that's true, then Cannon isn't violating precedent, she's setting it.
 
Ziggurat said:
The courts aren't generally going to rule on an issue that isn't brought before them.
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Bringing an issue properly before the court means addressing the threshold issues before deciding whether you can reach the merits. That's exactly what Marbury v. Madison was about. The finding in Marbury was that the court could not address Mr. Marbury's question on the merits because it failed at a threshold matter.

The Nixen court didn't just let pass the matter in silence. They do discuss it. This isn't an argument from silence; it's an argument from notable silence.

And if that's true, then Cannon isn't violating precedent, she's setting it.
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Then you agree she's raising a novel legal issue and has the burden of proof?
 
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JayUtah said:
Then you agree she's raising a novel legal issue and has the burden of proof?
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Yes she's making a novel legal argument, but no she doesn't have burden of proof because that concept doesn't really apply here since this isn't a question of fact but of law. She has to provide a justification for her ruling (which she did), but on appeal it will be both Smith and the defense who actually present arguments to the appeals court, not Cannon.
 
Ziggurat said:
Yes she's making a novel legal argument, but no she doesn't have burden of proof because that concept doesn't really apply here since this isn't a question of fact but of law. She has to provide a justification for her ruling (which she did), but on appeal it will be both Smith and the defense who actually present arguments to the appeals court, not Cannon.
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Or perhaps more succinctly: you argue that Cannon has carried her burden of proof by issuing her ruling. You asked for a counterargument. The counterargument has already been made: Cannon's ruling is a departure from longstanding precedent establishing the authority of special prosecutors. If Cannon argues that the facts of Smith's appointment differentiate it from precedent, she has the burden of proof. If she argues that precedent was badly decided as a matter of law, she has the onus to supply a more cogent legal theory. Even a judge can't base a ruling on "Because I say so."
 
JayUtah said:
Or perhaps more succinctly: you argue that Cannon has carried her burden of proof by issuing her ruling. You asked for a counterargument. The counterargument has already been made: Cannon's ruling is a departure from longstanding precedent establishing the authority of special prosecutors.
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Again, I think there's less precedent than you're claiming. I can't find any prior court decision which has ruled directly on this question, and no such cases have been presented here. Her ruling would not disqualify any special prosecutor who was already a US attorney (such as David Weiss). It would not disqualify special prosecutors appointed under the Ethics in Government Act, which was in force for over 2 decades but isn't now. How many special prosecutors would it actually cover besides Jack Smith?

If Cannon argues that the facts of Smith's appointment differentiate it from precedent, she has the burden of proof. If she argues that precedent was badly decided as a matter of law, she has the onus to supply a more cogent legal theory. Even a judge can't base a ruling on "Because I say so."
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Obviously. But she didn't do that. She didn't say "because I say so". She laid out her legal theory in her ruling, and at length. If you think that her legal reasoning is wrong, what exactly is wrong with it? Appealing to precedent at best suggests that others haven't agreed with her, but in the absence of a court ruling explaining why, that's very much a "because we say so" argument. Which isn't really better than a "because I say so" argument.
 
Ziggurat said:
Again, I think there's less precedent than you're claiming.
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You asked for the counter argument. The counter argument from the DOJ has been presented informally.

She laid out her legal theory in her ruling, and at length. If you think that her legal reasoning is wrong, what exactly is wrong with it?
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It's based on nothing more than dicta from Justice Thomas, who couldn't get any of his colleagues or even Trump's lawyers to bite. That in turn is based on a law review article by the authors of your amicus brief, which simply argues that the Nixon court didn't mean what it said when discussing the authority of the special prosecutor appointment, and should be ignored in favor of their reading. So yes, it's "Because I say so," just washed through several layers of judicial tap-dancing.
 
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Ziggurat said:
Courts have not considered this issue before.
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You asked for the counter argument. The counter argument put forward by the DOJ is that they have. Cannon’s theory, as prompted by Thomas, is that they may have, but that it should be disregarded in favor of Thomas’ unofficial and unshared reading of the case.
 
If the courts have considered it before, in what cases? I haven't seen any, and you have not cited any The Nixon case I've seen cited did not. I think the DOJ claim is wrong, and it contains no references.
 
JayUtah said:
You’re asking the DOJ to provide references in a press announcement?
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No, I am noting that they did not. That may be reasonable for a press release, but it still leaves them having basically said "because I say so". We are still left with no known precedent we can examine.
 
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