Podcast On Cannon Documents Dismissal

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Podcast On Cannon Documents Dismissal

Matt Bernius

July 16, 2024

Comments

[Documents taken in August Mar-A-Lago search]

For those interested in an in-depth exploration of Judge Cannon dismissing the charges against former President Trump on the basis that Special Prosecutor Jack Smith was not properly appointed, I recommend yesterday’s episode of the Lawfare daily podcast. Over the one-hour-long discussion, participants Benjamin Wittes (Lawfare Editor-in-Chief), Natalie Orpett (Lawfare Executive Editor), Anna Bower (Legal Fellow and Courts Correspondent), Senior Editors Alan Rozenshtein and Quinta Jurecic, and Columbia Law professor Michel Paradis go over the text of the decision in very accessible language. It’s too long to try to summarize, but high points include the following:

An exploration of some of the internal contradictions within the decision, including a question of whether or not its logic works with already appointed Federal prosecutors who are elevated into special prosecutor roles.
A discussion of the history of conservative objections to executive branch special appointments. The most recent version of the argument dates back to the appointment of a “czar” to oversee the Troubled Assets Relief Program. Michel Paradis, in particular, goes into detail on some of the fair concerns that underlie the argument.
The role that Justice Clarence Thomas’s recent concurrence (which no other justices joined) in the recent Trump immunity case played in Judge Cannon’s decision.
An overview on the current precedent on executive authority to appoint Special Prosecutors.
The reasons that the Justice Department needs to appeal the decision (which they already have).
And why, even if they overrule Judge Cannon, the 11th Circuit may not replace her as the presiding judge.

Listen to the episode here.

4 responses to “Podcast On Cannon Documents Dismissal”

JKB

July 16, 2024 at 9:42 pm

Even if the appeals court reverses the decision, it will likely be appealed to the SCOTUS. If they affirm, it will still go to SCOTUS since it is unlikely the DC judge will make the same ruling.

In any case, the cases are dead until after November.
Matt Bernius

July 16, 2024 at 10:22 pm

@JKB:

In any case, the cases are dead until after November.

In terms of moving forward in Florida, I completely agree. In fact, that was one of the key takeaways from yesterday’s post. (https://drjjoyner-cmlud.wpcomstaging.com/judge-cannon-dismisses-trumps-classified-document-case/)

Even if the appeals court reverses the decision, it will likely be appealed to the SCOTUS.

Correct. However, since this wouldn’t represent a circuit split (as that would match the DC circuit finding), the Supreme Court wouldn’t be required to take up the case. They could still slow-walk the decision to grant cert, though I suspect Smith would file for an expedited process.

That said, we’re off the map with this court and at least Thomas (and probably Alito) would want to hear the case in order to reverse Nixon, so as usual with this court, we’re off the map.

If they affirm, it will still go to SCOTUS since it is unlikely the DC judge will make the same ruling

It doesn’t matter how Judge Chutkin rules–if the 11th Circuit were to affirm this decision, then this would need to go to the Supreme Court because of the Circuit split.

Given everything, I still expect that the 11th Circuit will most likely overturn and remit back to Judge Cannon’s chambers. Then, regardless of any appeals process, she will continue to slow-walk this trial. Ultimately, there will be no real progress until post-election (especially as the election outcome will determine the future of any of the Federal Trump prosecutions).

2
Kevin

July 18, 2024 at 12:48 pm

What blows my mind is that Clarence Thomas can write a concurring opinion that no one else joined, but it somehow has weight.
Matt Bernius

July 19, 2024 at 8:58 am

@Kevin:
They touch on that a bit in the podcast. Concurring opinions as what they call “internal memos” for the courts. Their feeling, and other’s I’ve read as well, is that Justice Thomas’s opinion in this case was written, at least in part, to provide Judge Cannon with a roadmap.