Jack Smith BREAKS HIS SILENCE on Cannon's Decision

hi everyone Harry here to talk about Judge eileene Canon's dismissal of the marago case against Donald Trump and his two codefendants Carlos Dela and Walt NTA let me just start here she has been totally slow walking it and serving Trump's purposes of keeping this uh case from actually being decided for a year and this final sort of kudrass in a way isn't even surprising in a way puts us out of our misery I'll tell you what it sort of sets up soon but you have to see this in the context of her whole um really complete um in the tank service to Trump who appointed her as as his last batch of Judges after the um election in 2020 second the ruling and I'll get into this a little bit more too is just you know my oped which we'll link to here is I think accurate to say I started to sort of um criticize all the legal analysis Etc but that's not even the right point of view the right point of view is to think of this as the first decision of project 2025 where the rule of law completely takes a back seat to the preeminent principle of loyalty to Donald Trump okay let's talk a little about what happens next and then talk a little bit more about why the opinion is such a um piece of trash what happens next well so this dismissal is on the ground that the um appointment of Jack Smith or really any special counsel in within the Department of Justice was not not by law and there is a um provision in the Constitution that says if you have an inferior officer we'll get a little bit more into what that means the appointment Congress can provide by law for them to be appointed and by say the head of the department like Merrick Garland but if they don't then they need to be nominated by the president confirmed by the Senate the analogy for special council is attorney I have that job I had to be nominated and confirmed by the Senate and it's an important you know political uh check on the president and the possible use of you know really rank cronies in that position which little aside here is what we're surely going to see if Trump wins the important point to note is it's not the end of the case it's a dismissal because the special Council didn't have authority but even in a um whole legal landscape controlled by our lean Cannon and we very much do not have that legal landscape uh in this country yet there would still be the opportunity for the Department of Justice to refile the cases um either doing one of of two things including both one is to not have it be by a special counsel just have it be by a regular in the regular us attorney process a US attorney say uh in DC or Florida files the cases the problem there uh even though Canon has suggested this is the you know the kosher thing to do is remember we have a special councel here for a reason we're talking about the doj prosecuting the former president and that screams out for some kind of added Assurance of uh impartiality lack of politics and that's really important to Mayor Garland and I think in his estimation to the country so you've seen that suggestion bandied about but just taking special councils out of it is to take the Assurance of impartiality out of it I don't think that the doj is going to want to do that and in fact they've immediately appealed the decision already which is lick split for um approval of an appeal the other thing they can do is still file it with a special counsel but either in another District um where they hope they'll still be good venue that is enough has happened there that it's okay to bring the the cases or to bring the case that could be in DC or even in Florida and do another roll of the dice or relatedly take an appeal win the appeal which they should do I'll get i'll get to why that should happen shortly and move to Ru Cam and if they do that they can just come back to where they were they can use a special Council uh that's assuming the 11 circuit has reversed Canon's uh opinion and then they get somebody who's she she's recused from the case would that be likely yeah I think it actually would be first the opinion again it'll get to the moment is wrong as the day is long but second she's got such a track record here and we have real reason to think that the um members of the bench down there conservative liberal whatever are all see this as a terrible eye saw and her as a real embarrassment they pushed her to get rid of the case before and she didn't do it uh meaning I think that they'll take the opportunity if they can to recuse her what would that mean they would need under the pretty strict law of the 11 circuit to find a that she got this one wrong which I think they will unless the Elon circuit also goes up River and uh and that' be you know this overall pattern starting with her whole crazy ass green lighting of Trump's separate action to after the search to challenge it and have executive privilege review and all that stuff completely um bizarre and unprecedented the 11 circuit sternly uh reverse that and they can use that as a sort of predicate the law of the 11 circuit as if there's sort of a pattern of bad and U imbalanced Holdings by The District Court you can use that to recuse okay now let's just talk about the case a little bit so here's the the holding as I said is that Jack Smith uh it's it's not it's not this important you know she starts the opinion with all these August statements about the separation of powers and the appointments clause and all that stuff it is not a constitutional case okay there have been constitutional challenges in the past to appointments of independent counsil that's not what this is everybody agrees that the um attorney general uh if there's a law passed by Congress that authorizes it can appoint a special counsel now there are reasons why it's better or worse as a practical matter and those are the things that have been discussed sort of uh at length and played out but the argument here even though she says it's uh the the uh Vindication the appointments cause really all it is is here are a few statutes the Department of Justice propers them and says look they give us Authority Congress said you can use them to appoint somebody to help you on a case that means that under the Constitutional language uh you have the special counsel uh an inferior officer Congress has provided by law that is a statute for their um appointment and so her holding the dressed up in fancy constitutional guard was really just saying each of these four statutes doesn't provide the justification that the doj says it does for um appointing a special Council to help out here um now this holding was you know not simply um kind of a a a surprise but flies in the face of case after case after case including uh the Nixon case most importantly 1973 where the court basically says that this is something that the Attorney General can do more than basically it says Congress has said that that um the Attorney General can do it and she goes through this sort of tortured 10-page analysis about why that statement in US versus Nixon that's been again and again invoked um is in fact dictum or a passing uh passing statement she says um meaning that even though the Supreme Court said it in its unanimous opinion it actually didn't figure in the holding that just seems totally wrong if you look at the holding of Nixon if they had found otherwise that there wasn't Authority I don't I I think in fact it would have mattered so it's not what the lawyers call dictum it is what they call holding but the main thing is you know it's just been taken as a canonical you know statement since 1973 of course the power here does reside in the Department of Justice so she is completely um against the not just a tide but a a you know a torrent of opposite opinion and also you know the the sort of stench of it is accentuated by knowing that that in this recent immunity case CH uh justice Thomas did one of his lone concurrences where he basically well not different from from his normal ones normally he's known for his crazy kind of I would hold there's no um you know enumerated rights in the Constitution Etc what he did here was agree with everything that the majority had said but then kind of in this weird academic almost Parlor Room after dinner exercise say but there's another thing I think I just want to talk about a little I'm not sure it's right but I want to talk about it so that's the exact Theory that um Canon took and you know galloped um away with so um you know it's just not really even worthwhile to criticize it on its own terms as one normally criticizes legal rulings as a matter of precedent as a matter of statutory construction she's just way out there as a judge of one and it just the conclusion seems inescapable that she's you know wagering in some way on Trump's winning and that that being her professional future certainly she won't have one otherwise and of course that's just so grievously wrong because what it means is you know she's not she's violated her oath to do justice not having to do anything with the parties and it's like just a really embarrassing and shameful uh day but of a piece with what with what Canon had uh has been doing so far by the way remember she's studiously avoided um she's got nine different motions there that she hasn't even ruled on because she hasn't wanted to give I think the 11 circuit a chance to reverse and recuse her but now this is the Smart play in just sort of Crash mellian turns because now I don't think there's time for the 11th circuit to um reverse the holding as they almost certainly will before the election so whatever sort of shot in the arm and Trump went running with it right away about how you know the beginning of the end of the um the attacks against him in the legal system Etc she makes it now um it's true I think her service to Trump is now at an end either she gets recused or the uh doj refiles charges in a way that keeps it 99 Mi away from her but you know the account is paid in full she's done all she could short of just starting the trial and then you know trying to end it in the middle so there's double uh Jeopardy so you know it's a really um just just egregious shameful episode just in the annals of the federal Judiciary but it it's you know properly seen I think through this vantage point of what has she done for Trump lately and what might he do for her and she's done all she can you know she's um dismissed the case in a way that will hold until it's reversed and that will be almost certainly would be after the election you can imagine state of play where the doj right away files elsewhere but that's not happening because I think the reasons I said the they they really care about this principle of of appearance of neutrality where prosecution of trump is concerned and so they have already immediately and you have to there's a whole process here and it went licky split they've already authorized the appeal so looks like that's the route they're going to take appeal to the 11th circuit ought to be reversed she ought to be recused but of course by then if Donald Trump has been elected president the whole thing is is mot because he will in his you know completely trumpy and corrupt way just instruct the department Justice to make this case go away and he'll have the power to do that so it's a toddy embarrassing uh really you know violative of her oath kind of not just yesterday's the culmination of all of that stuff but you trace it back to when she first uh you know is importuned and it takes the um offer by Trump to get involved in the case and man oh man it is really a case study in uh judicial der elction talk to you later thanks for tuning in if you enjoyed this video and other talking feds content please take a second to like And subscribe talk to you later

Channel: Talking Feds with Harry Litman

Views: 178,231

Keywords: talking feds, podcast, legal, law and politics, politics, DOJ, SCOTUS, law, political analysis, government, global issues, united states, united states politics

Id: q_aJLdPRfCQ

Length: 14min 54sec (894 seconds)

Published: Tue Jul 16 2024