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

[Hercules56]

Is Cannon arguing that the Special Counsel provision is unConstitutional?

AG can no longer select a Special Counsel to investigate anything? Only Congress can do this?

 

[TellyKNeasuss]

Katyal is wrong. First off, I don't recall there being any challenge in the Hunter Biden case to the validity of David Weiss's appointment, so I simply don't believe that the judge has ruled on the matter at all.

Actually, Hunter Biden filed such motions in both his gun possession case and his income tax evasion case.

 

[JayUtah]

Argument from authority.

Not at all. An eminent lawyer, law professor, and solicitor general who wrote the DOJ regulations has spelled out the authority behind them. Your response is, "He's wrong." I don't think you know as much about interpreting the law and court cases as he does.

You can't actually say why I'm wrong.

Because the interpretation of the law that you are relying on says we should just ignore the Nixon court. Justice Thomas couldn't get any of the other justices to go along with that, or Trump's lawyer to make a supporting argument for it.

 

[Hercules56]

There is zero chance Trump will prevail on the merits in this case. It’s open and shut. That’s why it’s vitally important that Trump’s judicial allies torpedo this on procedural grounds. Hence Judge Cannon’s need to play the card.

AG is rightly appealing and he will win.

Cannon is a moron.

 

[JayUtah]

Is Cannon arguing that the Special Counsel provision is unConstitutional?

AG can no longer select a Special Counsel to investigate anything? Only Congress can do this?

Cannon is arguing that the appointment of a special prosecutor in this case should have been as a senior officer subject to the advice and consent of the Senate under the Appointments clause, not a subordinate officer that doesn't require confirmation.

 

[Hercules56]

Cannon is arguing that the appointment of a special prosecutor in this case should have been as a senior officer subject to the advice and consent of the Senate under the Appointments clause, not a subordinate officer that doesn't require confirmation.

So EVERY Special Council must be approved by the Senate????

Wow. Cannon really IS a moron.

 

[Ziggurat]

Not at all. An eminent lawyer, law professor, and solicitor general who wrote the DOJ regulations has spelled out the authority behind them. Your response is, "He's wrong." I don't think you know as much about interpreting the law and court cases as he does.

That may be, and yet he still made a mistake, one which I explained and which you still don't seem to understand. Cannon's argument is that special counsels, as officers of the US, must be nominated by the president and approved by the senate. Weiss was nominated and approved. Smith was not. Under Cannon's argument, Weiss acting as special counsel isn't a problem, Smith is. This isn't a question of whether Cannon is right or wrong, it's a question of what Cannon is saying. And Katyal got what she's saying wrong. Other than appealing to his authority, you have provided no counter-argument.

Because the interpretation of the law that you are relying on says we should just ignore the Nixon court.

Everyone keeps appealing to the Nixon court, and yet nobody can quote from it showing that they ruled on this issue.

And as far as I can tell, they did not rule on it. If they did, it should be an easy matter to quote from them. I've been asking for that all along, yet nothing is forthcoming. Quoting from other people, regardless of their credentials, who say the court said something isn't a substitute for quoting from the actual court saying that thing that they supposedly said.

 

[Ziggurat]

Actually, Hunter Biden filed such motions in both his gun possession case and his income tax evasion case.

Source?

And in any event, under Cannon's interpretation Weiss's appointment is valid because he was already a US attorney, which is a position that requires both presidential appointment and senate confirmation.

 

[Hercules56]

So Jack Smith wasn't already a Federal attorney when he was appointed as Special Counsel?

 

[TellyKNeasuss]

Charlie Savage reported, "Other special prosecutors have been appointed from outside the government, including Leon Jaworski in the Watergate scandal, Lawrence E. Walsh in the Iran-contra affair and Robert S. Mueller III in the inquiry into the Trump campaign’s ties to Russia. Courts nevertheless consistently said their appointments were lawful...It [the Appeals Court] added, “The Supreme Court’s quoted statement regarding the attorney general’s power to appoint subordinate officers is, therefore, not dictum.”"

Also, the special counsel appointed to investigate the classified documents found in Biden's home, Robert Hur, was not a government employee.

DoJ regulations regarding special counsels appear to require that a special counsel be someone who is not working for the government.
https://www.law.cornell.edu/cfr/text/28/600.3

 

[Ziggurat]

So Jack Smith wasn't already a Federal attorney when he was appointed as Special Counsel?

Not at the time of his appointment.

 

[JayUtah]

If they did, it should be an easy matter to quote from them.

Judge Cannon did, in her ruling. The argument Thomas spoon-fed her was to say that part of Nixon shouldn't be considered precedent.

The counterargument is as it always has been.

 

[TellyKNeasuss]

Source?

https://www.washingtonpost.com/national-security/2024/07/16/hunter-biden-trump-special-counsels/

The younger Biden said in February that a nine-count federal tax case against him should be dismissed because special counsel David Weiss, who is leading the prosecution, was unlawfully appointed and illegally funded

Biden made that same argument about his special counsel a few months earlier to the judge overseeing a separate federal gun case against him in Delaware.

Neither the article nor other articles that it linked to discuss why the motions were rejected. The motions apparently cited 28 cfr 600.3, which states that special counsels should come from outside the government.

 

[Ziggurat]

Judge Cannon did, in her ruling.

Then why didn't you quote this pages ago when I first asked? It would have saved a lot of time.

I have looked up the passage in question. For those who want to check themselves, here's the source:

https://www.politico.com/f/?id=00000190-b6c3-d6f8-add2-bef7423b0000

And here's the passage originally from Nixon, reproduced by Cannon on pages 53-54.

Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure. The regulation gives the Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties.​

So is that precedent? Smith wants it to be, but there's a hiccup in his interpretation. As Cannon argues on page 54,

The issue of the Attorney General’s appointment authority was not raised, briefed, argued, or disputed before the Nixon Court. Nixon is undoubtedly precedential in several areas—for example, in its pronouncements on the justiciability of an intrabranch controversy; the test for issuing Rule 17(c) subpoenas; and application of executive privilege in the face of a valid subpoena. Those issues were presented, argued, and carefully considered. The same is not true of the Attorney General’s statutory appointment authority. At most, Nixon assumed that antecedent proposition, without deciding it.​

I don't think that's an unreasonable interpretation of the Nixon case. Perhaps the SC will disagree with it, but if they don't, then Nixon isn't precedent here and she's not going against it.

 

[Ziggurat]

Neither the article nor other articles that it linked to discuss why the motions were rejected. The motions apparently cited 28 cfr 600.3, which states that special counsels should come from outside the government.

Yeah, that's a very different argument for dismissal than the one made by Trump et al.

 

[JayUtah]

Then why didn't you quote this pages ago when I first asked? It would have saved a lot of time.

It would have saved a lot of time for you to have actually read Nixon and Judge Cannon's decision.

I don't think that's an unreasonable interpretation of the Nixon case. Perhaps the SC will disagree with it, but if they don't, then Nixon isn't precedent here and she's not going against it.

Thomas already tried to raise the issue with the Court in the immunity case. It didn't stick.

 

[Ziggurat]

Thomas already tried to raise the issue with the Court in the immunity case. It didn't stick.

That doesn't mean much. The court didn't need to in order to decide the case before it, and courts often limit their decisions to what's necessary even when they could go further.

 

[W.D.Clinger]

Source?

https://www.washingtonpost.com/national-security/2024/07/16/hunter-biden-trump-special-counsels/

The younger Biden said in February that a nine-count federal tax case against him should be dismissed because special counsel David Weiss, who is leading the prosecution, was unlawfully appointed and illegally funded

Biden made that same argument about his special counsel a few months earlier to the judge overseeing a separate federal gun case against him in Delaware.

Neither the article nor other articles that it linked to discuss why the motions were rejected. The motions apparently cited 28 cfr 600.3, which states that special counsels should come from outside the government.

On 11 December 2023, Hunter Biden filed a MOTION TO DISMISS THE INDICTMENT BECAUSE SPECIAL COUNSEL WEISS WAS UNLAWFULLY APPOINTED AND THIS PROSECUTION VIOLATES THE APPROPRIATIONS CLAUSE, whose first sentence reads as follows:

This prosecution is not legally authorized because David Weiss was unlawfully appointed as Special Counsel and Congress has not appropriated funds for the Special Counsel’s investigation or this prosecution.

The second paragraph begins with this sentence:

In addition to not being qualified to serve as Special Counsel, the Special Counsel’s funding for his investigation and this prosecution was not approved by Congress and, therefore, violates the Appropriations Clause. See U.S. Const. art. I, § 9, cl. 7 (“No money shall be drawn from the Treasury, but in Consequences of Appropriations made by Law.”)

On 30 January 2024, Hunter Biden's attorneys replied to the government's response to that motion.

On 12 April 2024, District Judge Maryellen Noreika denied the motion. In addition to ruling that DOJ regulations did not confer a right on which Hunter Biden could rely, the judge ruled that the appropriations were constitutional:

The use of the permanent appropriation to fund special counsel appointed after the independent counsel statutes lapsed is well established. See generally United States v. Stone, 394 F. Supp. 3d 1, 17-23 (D.D.C. 2019) (setting forth the history of independent and special counsel appointments and the funding thereof through the permanent appropriation). Indeed, there have been at least six other special counsel appointed since 1999 who were funded by this appropriation: John Danforth, Patrick Fitzgerald, Robert Mueller, John Durham, Jack Smith and Robert Hur.

As I have highlighted, Judge Noreika cited Jack Smith as one of six precedents showing "The use of the permanent appropriation to fund special counsel appointed after the independent counsel statutes lapsed is well established."

IANAL, but I believe this is an example of a judge's ruling that runs counter to the second part of Judge Cannon's decision, in which Cannon decided Jack Smith's funding was unconstitutional.

 

[JayUtah]

That doesn't mean much. The court didn't need to in order to decide the case before it, and courts often limit their decisions to what's necessary even when they could go further.

Agreed. It didn't stick in the context of the immunity case, but that's no guarantee of future behavior. This Court consistently defies prediction.

When I read the tea leaves—inexpertly—I see this as Justice Thomas just being himself. He dislikes precedent, and he likes his projects. Upending the special counsel concept seems like a Thomas project, which is why he had to write his own concurrence. I suspect the majority in the immunity case didn't want it for the binding opinion. But we can go crazy imagining why that might have happened.

In the larger sense this smacks of activism. Thomas' projects are about inviting cases so that he can see if a majority will follow him in ruling on his policy preferences.

 

[TellyKNeasuss]

If I read this correctly, there was a challenge to Robert Mueller's appointment as a Special Counsel and the Circuit Court of Appeals ruled that a Special Counsel is an "inferior officer" who does not need Senate confirmation.

https://casetext.com/case/in-re-investigation-5442