Jack Smith Makes CURIOUS MOVE against Judge Cannon

this is Michael popo legal AF look at the glasses look at the time it's time for legal af after dark Jack Smith very busy we thought he was just needed a couple of extra days to get the ducks in a row about how he was going to address the new indictment against Donald Trump in the DC election interference case but no he also had time to file a masterful rebuke of Judge canon in the 11 circuit telling the 11 circuit that judge Canon fundamentally does not understand how to do her job I mean I'm paraphrasing she that she doesn't understand that the United States Supreme Court and its rulings about the legitimacy of special councils just like Jack Smith is law of the land and binding on her even in Fort Pierce Florida we tell you more we analyze more of it on legal AF take a listen and now we're going to dive into the other half of Jack Smith the walking and chewing gum at the same time a filing at the 11 circuit I'll kick this one off and I'll kick it over to you car does that make sense all right so Jack Smith has told the 11 circuit no uncertain terms the judge Canon fell asleep in judge school where they taught her that the Supreme Court Reigns Supreme and if they make a decision in a case and they make it clear that they're not making any assumptions and they're uh and they're making a fundamental decision that applies to an issue that's before you in your court you have to follow the United States supr Supreme Court just as judge Canon has to follow what her bosses at the 11 circuit just above her say she can't ignore it she can't make new canon law she's got to follow it it's called hierarchical star decisis uh it's the star decisis part is you got to follow the president and you got to follow what your bosses say above you what did Judge Canon do wrong well she did a little thing wrong called ignoring a over 50-year line of precedent starting with us versus Nixon the last time we had a corrupt criminal Pres president which generated a lot of case law and in that case the Supreme Court uh validated the existence uh of a special prosecutor which is effectively what a special counsel is and whether you call it a special prosecutor or a special counsel or an independent counsel arose By Any Other Name is a prosecutor and that's the point that Jack Smith has has raised and that the Supreme Court declared that Leon jorski the special prosecutor in 197 197 in the White House case against against uh um Richard Nixon and everybody else in his in his dirty band of Tricks uh had subpoena power had power to prosecute that can't be ignored and that's what she did wrong she said well there's so many different names for the prosecutor you there's an independent counsel and sometimes they're called a special counsel sometimes they're called an independent Council it's so confusing I can't follow it so I'm just going to say that this person is not not illegitimately appointed uh inferior officer of the of the Attorney General what is she talking about since 1909 the Department of Justice through its powers afforded to the attorney general under article two of the Constitution has fleshed out the Department of Justice where does she thinks 23 uh departments eight divisions and the rest where do she think thousands of workers in the Department of Justice have come from most of them prosecutors if not by the proper appointment under the inferior officer Clause of the of the US Constitution so she's off on a wrong foot and she never catches up uh special counsel Jack Smith is a is an inferior officer appointed by the department head of this case in this case the Attorney General of the Department of Justice to prosecute cases that's what he is and that's who he works for and that's who he reports to ultimately and that's who he has to consult with and that's what his paycheck says paycheck says Department of Justice he doesn't get a 1099 he's not an independent contractor he's not some stranger to the case the way that Clarence Thomas suggested or she adopted and he's funded appropriately by legislative action that took pains when they repealed the independent Council law back the uh back in the 1990s when both both sides of the aisle hated what Ken star did in the uh Whitewater going after Clinton they were like yeah we don't need this independent Council rule let's let the Department of Justice through its inferior officer appointment Clause handle it themselves but they kept the funding intact they basically said we're getting rid of the council law but the funding stays alive this indefinite funding doesn't have to be sought every year anytime the Department of Justice wants to exer ex its right under its guidelines adopted ultimately by Congress to the CFR code of Federal Regulation to appoint a special counsel which is what happened here they're funded they're F they're funded out of the Department of Justice's budget that's it this is not complicated what I just did in four minutes alien cannon in 93 Pages couldn't get right and now with the 11 circuit filing you have it let me just read two parts of it then I'll turn it over to you Karen this is my favorite these are my favorite parts so under the um the statement of the case they they love taking her to task by saying that things there's been a some version of a special prosecutor since the 1870s okay and the naming of it the nomenclature doesn't matter what we ended up calling it uh and she puts undue influence or weight on the naming or the funding or the this and the that and ignores the US versus Nixon president this is what they said the Attorney General validly this is page eight the Attorney General validly appointed the special counsel who is also properly funded in ruling otherwise the district court that's Canon deviated from binding Supreme Court precedent misconstrued the statutes that authorized the special council's appointment and took inadequate account of the longstanding history of the Attorney General appointments of special coun oh that's all she did okay they then lead off with us versus Nixon and this is what they say on that um in in 1974 the Supreme Court this is page eight again determined that the Attorney General had statutory Authority under four different sections of the US code section uh 28 USC section 509 510 515 and 533 that's the recurring theme in the brief that those same sections 09 10 15 and 33 are the power that come down from the US Constitution Article two to through Congress to empower the Department of Justice and the Attorney General to do just what they did this is what it says on page eight a uh apart from the district judge below District Court below that's Judge Kon apart from her every Court to consider the question has concluded that the Supreme Court Court's determination that those statutes authorized the Attorney General to appoint the water Watergate special prosecutor was necessary to the decision that a justiciable controversy existed and therefore constitutes a holding that binds lower courts in other words every judge in America in jurist Prudence in federal practice that has had to deal with the issue since 1974 has found that Watergate stands for the proposition that the special prosec special counsel independent counsel is a proper creature of the Attorney General and is not illegitimate including the Supreme Court in more recent decisions that also could have been cited so I could go on including the references to um things that happened in 1909 in 1870 I mean on pages 12 through 13 they go through that long history of the attorney general appointing uh the lawfulness of the special council's appointment this is just a um fundamental rebuke to aen Cannon the only thing that surprised me and I'll leave it on this and you can pick up where you like Karen the only thing that surprised me maybe it shouldn't is that I thought at this moment after three separate fundamental misapprehensions of the law by this judge from before the indictment and now with the indictment including dismissing the case because she found the special prosecutor special counsel to be invalid for the first time in a in 200 years would be grounds for Jack Smith to say at least in a footnote maybe it's time for the 11 circuit to consider reassignment of the case to a different judge he doesn't do that doesn't mean they can't do it on their own but he doesn't ask for it just like your old office didn't didn't take a position although I thought they did in sentencing of Donald Trump and all of that what do you m you pick up with it what do you make of what what did you pick up from it and what do you think about why Jack Smith didn't go for the jugular and ask for her removal so you know I'll start with that it that was the thing that surprised me too a lot of us were were wondering is is he going to ask for the recusal but I am sure what what the Department of Justice did is they went through every single time any uh middle circuit uh pellet Court ever removed a judge right and and gave it a case to another judge they went through every single one I'm sure in the history of the Department of Justice and looked to see is it something that you have to ask for or is it something that they do on their own and I am sure whatever they found informed how they were going to handle this they don't want to look biased in any way they don't want to make this about Judge Cannon they want to keep this about the law and certainly the 11 circuit knows that they can remove the case from Judge Canon they know they have that Authority and they know that she has literally uh been Lawless several times throughout this this case and so they they they don't need to be told or requested in order to do that if that is something they are so inclined to do so I'm sure that's what what Jack Smith um wants to keep this about the law and not make it personal that that's what I picked up from that but yes I I raised an IT raised an eyebrow for me as well when I when I saw that I was certainly looking for it uh you know the only thing I'll add to what you said which is an excellent um recitation of of where we are in this case is first of all I enjoyed reading this I I've enjoyed this because number one it's really a lesson it's like a history lesson in special councils and the Constitution and the Appropriations clause and the appointments clause and inferior officers and you know it's really it's it's just been a very interesting time to be a lawyer because so many things that we have taken for granted and do take for granted it all comes from a place it all comes from a source and and so when you have to go back and and refresh your your memory on these things because you last time you read the appointments clause or the Appropriations Clause was in law school you know it's it's it all starts to really make sense and I thought that the uh that Jack Smith's brief really did a great job at explaining in normal people's terms why judge Cannon's position is illogical makes no sense and really just just strains any semblance of logic and reason you know she although although you're right about star decisis and and precedent you know she she's essentially Clarence Thomas wrote her a love letter as you called it inviting her to make this decision right and it's spelling it out for her so she she knows who her bosses are and that's he's one of them right and so this was very much written for him as as much as it was any anybody else you know he he gave her essentially he gave her permission to do this so uh I think that's why she felt emboldened to do this and don't forget she did it on the day be you know the day after he was um you know attempt they attempted shooting of of where he got nicked in the ear with with shrapnel and uh and and the day before you know the day of the convention is when she you know basically gave him this this gift of of dismissing the case so um but you know the the thing about it my favorite part of it is is just how ridiculous and illogical it is her the position she's taking which is that special counsel would be okay if you appointed him from within the Department of Justice the person had to be already an employee but the fact that you pulled from the outside then it's not okay you know and and that just seems ridiculous because of course the Department of Justice can appoint a usas you know the special assistants who are thousands of people across the country who prosecute these crimes and of course they can even you know the the the they they can appoint the president can appoint United States attorneys and you know all that there there's all sorts of units and bureaus Etc within the Department of Justice right that they create and none of those have to be have to beo um approved by Congress and so just to make it so that the special counsel is somehow different than that really just makes no sense so so I thought that they did a really good job at explaining that in this and to show how this is kind of an absurd position that that she has put herself into so I think the 11 circuit will uh very very quickly and expeditiously rebuke her on this that that's my my feeling yeah I agree and I think they they by this by the prosecutor remaining agnostic about reassignment I mean it is what it is um and if the if the 11 circuit and the three judge panel which has not yet been assign but I would I'm hoping that William prior the chief judge is part of it if they think it's time for her to go under the reassignment power that they have under the statute and they're going to reassign her um this would be a perfect time to do it but it's like in there I I will assure you that in the history of every person on the 11 circuit they have never dealt with a case where a federal trial judge has dismissed the case enclosed the case on the indictment because she found that the prosecutor was improperly appointed exactly zero amount of times so they have the grounds to do it and he could just stay neutral and this way it it doesn't play into the hands of the law fair and the weaponization and boohoo election interference it's like we didn't ask we didn't even ask for it we just said remand back to the trial judge with instructions you know um but but they're going to do what they're going to do and we're going to continue to follow it welcome back every Wednesday and Saturday 8 PM Eastern Time right here on this YouTube channel you'll find a show we call Legal AF we named it that four years ago and now you know why we sit at the intersection of Law and politics so you don't have to and we bring it to you as practicing lawyers from our vantage point with a good educated guest about what's going on with our opinion like no other show on YouTube I I I'm confident about that if you like what we're doing see the full length episode it's four or five uh stories at that intersection of Law and politics brought to you just that way Wednesdays I do it with Karen Freeman at nifo Saturdays I do a show on the weekend called Legal AF as well with Ben melis and then on hot takes like this I don't know about every hour on the mest touch network uh if you if you like to watch us record this uh YouTube you can watch us right here on this YouTube channel and you can live chat with us if you instead want to listen to our audio version of legal AF just plug legal AF into any of your audio podcast platforms and you'll find us so until my next hot take until my next legal AF this is Michael popo reporting herei herei legal AF law breakdown is now in session go beyond the headlines and get a deep dive into the important legal Concepts you need to know and we discuss every day on legal AF exclusive content you won't find anywhere else all for the price of a couple of cups of coffee join us at patreon.com leala that's patreon.com leala