UPDATE from MAL classified docs case hearing today:
Todd Blanche and Emil Bove appearing today on behalf of Trump. Stanley Woodward, Sasha Dadan, and John Irving appearing on behalf of Walt Nauta and Carlos DeOliveira. - No defendants are present in court today.
2/ - Bove argued the statute does not authorize the AG to appoint Special Counsel. - Bove: if the AG appoints a special counsel with the authority of a US Attorney, it "gives the AG the power to appoint a shadow government."
When asked by Cannon about the history of the use of special counsels, independent counsels, and special prosecutors, in some cases dating back to the 1800s, Bove acknowledged that “varied history” but said that “history and practice” cannot overcome the statutory text
3/ - Bove: the purposeful independence of the Special Counsel from the AG renders Smith's appointment unconstitutional, because that independence makes him a “free floating principal officer” rather than an official reporting to the AG. - Bove: Smith does not have “sufficient oversight” of his decision making.
Pearce: in US v. Nixon, the court held that the AG had the authority to appoint a Special Counsel and to empower them to act and investigate independently. - Pearce: All 8 judges that have since addressed this have found that even though it's “dicta,” it was a common interpretation of the case.
5/ - Pearce: in responding to Bove’s attempts to draw a distinction between officials and officers, argued that “official” is a “catch all” term for officers and employees.
Cannon asked Pearce what backs the authority of the Special Counsel in this case who she noted was not assisting but leading an investigation:
6/ Pearce ticked through historical precedent, including the appointments of independent special counsels by Ulysses Grant and Theodore Roosevelt, before noting that in 1930 Congress ratified that practice of appointing independent Special Counsels.
Matthew Seligman, an attorney, is arguing before Judge Cannon on behalf of Special Counsel Jack Smith's appointment.
Seligman: the special counsel meets the definition of an inferior officer, allowing the attorney general to appoint them. He pointed to Supreme Court precedent upholding independent counsels - which are if anything more independent than special counsels - as inferior officers.
8/ - Seligman: the most important factor in determining whether an official is an inferior officer is whether the officer has a superior.
“The order appointing Jack Smith could just be changed” by Garland, Seligman said, giving him sufficient oversight, though he conceded when pressed by Judge Cannon that the “day to day supervision of litigation is not there.”
Nonetheless, the regulations still provide guidelines for when the AG can overrule decisions made by the special counsel.
Josh Blackman argues on behalf of Landmark Legal Foundation in support of Trump’s position.
Blackman: Between AG Garland not giving Smith a specific set of regulations to abide by as the Nixon AG did, as well as the Nixon AG “illegally” allowing Congress the power to remove the special counsel, Blackman says the prosecution’s reliance on Nixon is weakened. - Blackman says “Nixon is persuasive but not binding,” and holds no bearings on the merit of the case.
///In 2007 the Landmark Legal Foundation nominated commentator Rush Limbaugh, who sat as an unpaid member of its advisory board, for a Nobel Peace Prize.[10]///
@GottaLaff I'm not sure they want to win this one.
If the Special Counsel has no standing, then the case would be handed over to an appropriate DoJ prosecutor to bring a new case.
A new warrant would warrant going to the district and asking for a new judge and using her history as a basis to render her intelligible to serve in the role.
If that approach wasn't taken, an appeal would result in her ruling being overturned.
Seems to me that we are getting closer to the 11th circuit removing her.
A clearly faulty judgment on this against the independent counsel law along with the need about being told twice by more experienced senior judges she ought to refuse but refused will likely combine to make it happen.
If that has any chance of being true, the question of what happens to this trial becomes THE question.
So long as a jury is not seated under Cannon there will be no double jeopardy