FBI Search and Seizure at Trump's Mar-A-Lago Residence, August 8, 2022, Case Dismissed July 15, 2024

Politics & Elections
8486

A review of Cannon’s decision by Cato: https://www.cato.org/commentary/analyzing-judge-cannons-opinion-was-jack-smith-legally-appointed

Personally, were I before the Supreme Court, I would argue for a basic assumption that should underlie any legal analysis: The Framers and Congress aren’t stupid. If there’s an interpretation for a contradiction between some portion of the laws and another interpretation that suffers no such conflict, then the second interpretation is correct. It’s ridiculous, for example, to say that the Constitution includes impeachment by Congress, but then say that impeachment ruins the separation of powers or goes against the democratic process that the Framers intended. Clearly, they had no such fear or they wouldn’t have written it that way. We’re just inventing problems for the sake of inventing problems.

Likewise, if Congress wrote a law allowing a cabinet member to appoint a particular position then, whether they called that position an “inferior officer”, explicitly, or not, there’s no reason to assume that they had any other intention. They’ve described a process that aligns with the appointments clause for how to generate an inferior officer. Why presume that they had some other non-Constitutional intention, when there’s nothing about the position that’s been describes that departs from the parameters of an inferior officer?

8487

You would have to argue on the doctrine of stare decisis as applied to the Nixon and Morrison precedents. That is going to be the big issue, I think.

I read Judge Cannon’s opinion, and I think she should have given Nixon more weight. But on the merits, I think she’s within the parameters of reasonable disagreement.

~Max

8488

I don’t believe that the Supreme Court runs like a regular court where you list out the arguments that you want to make and they accept/reject some of them for consideration.

You can get in there and call everyone in history wrong and idiotic, and if you can convince the court that you’re right to say so, then so it shall be. To be sure, they’re going to be strongly inclined to stare decisis (though, in this case, that runs to Smith’s favor, not Cannon’s) but, technically, any particular argument could be the one that converts them into abandoning history for any particular case.

If you have more and better arguments, that likelihood increases.

8489

In an attempt to reverse the Supreme Court’s immunity decision, Schumer introduces the No Kings Act

WASHINGTON (AP) — Senate Majority Leader Chuck Schumer will introduce legislation Thursday reaffirming that presidents do not have immunity for criminal actions, an attempt to reverse the Supreme Court’s landmark decision last month.

Schumer’s No Kings Act would attempt to invalidate the decision by declaring that presidents are not immune from criminal law and clarifying that Congress, not the Supreme Court, determines to whom federal criminal law is applied.

8490

And to make republicans stand up and defend treating the POTUS as a King.

8491

How would an act passed by Congress differ from a constitutional amendment on the same subject as Biden proposed?

Question is moot since neither an act or an amendment has any chance of getting through the current Congress, but I am curious constitutionally.

8492

My non-lawyer guess is that someone would have to challenge the Constitutionality of the No Kings Act, and SCOTUS would have to rule on it.

8493

Glancing through the Act (PDF), it appears to be less an “Act” - i.e. a set of laws - and more just a legal opinion piece saying that Congress gets to decide who is immune from what, not the Supreme Court.

You would need to look through the history of SC cases on presidential immunity to see if they’ve already addressed the specific legal viewpoint or if it’s novel. If the latter, they probably should have sent their argument over while Trump’s case was being reviewed.

But, in general, I’m relatively skeptical that SCOTUS would accept the idea that Congress gets to decide Constitutional interpretation since like…you know, that’s pretty clearly defined in the Constitution as being exactly what the Court is meant to be the sole arbiter of. The Act, as written, would likely be struck down in entirety on that basis.

I think that they would have been on more solid footing if they’d taken their own argument that they get to decide who’s prosecutable and simply adjusted the laws to specifically note that the President is prosecutable. E.g. if we take the murder statute:

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life

And modify like:

Any person, including the President, Vice President, Congressman, Justice, Officer, citizen, or other person under jurisdiction of the United States law, who is guilty of murder in the first degree…

The Court has a long history of excluding the President, officers of the government, etc. from collective groups, saying that Congress didn’t explicitly mention them. Once you add the explicit mention, that brings in a lot of historical precedent that sides with Congress.

8494

It is? Where? Remember, it wasn’t until Marbury vs. Madison that the Court was regarded as being able to overturn unconstitutional laws: Prior to that, it was expected that it would be Congress that would police itself on staying consistent with the Constitution.

8495

If we ignore that. :sweat:

It’s well-ingrained into the system, it’s reasonable to say, though.

8496

An amendment has zero chance, but a bill has some slight chance (The GOP has a very small majority in Congress). And I disagree- the prez should have immunity for official acts- but those acts are strictly limited. I dont want a president arrested and charged for assasination for sending a team to kill some terrorist leader in a foreign nation.

8497

Prior to Marbury v Madison, all six Justices of the Court, sitting individually on circuit cases, had held that they could hold a federal statute to be unconstitutional. Those six decisions were prior to Marshall being appointed to the Court.

8498

See also Federalist 78, where Hamilton explicitly stated that the federal courts would have the power of judicial review:

If it is said that the legislative body is themselves the constitutional judges of their own powers and that the construction, they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

Don’t want to go further here, to avoid a hijack, but there is a thread discussing this point from a few years back;

8499

This is absolutely infuriating to me. I’d love to be able to confidently say that such a ridiculous lawsuit will be summarily thrown out of court with extreme prejudice and the lawyers heavily sanctioned, but that was only a certainty in the Before Times.

Trump to sue DOJ for $100M over Mar-a-Lago raid, alleging ‘political persecution’

Epstein added that the decisions made by the DOJ and FBI regarding that raid were “inconsistent with protocols requiring the consent of an investigative target, disclosure to that individual’s attorneys, and the use of the local U.S. Attorney’s Office.”

Really, they’re supposed to ask the permission of the target before carrying out a search warrant? Seems like that would render a search moot, as they’d immediately move or hide anything they didn’t want the authorities to find.

“Garland and Wray should have never approved a raid and subsequent indictment of President Trump because the well-established protocol with former U.S. presidents is to use non-enforcement means to obtain records of the United States,” Epstein wrote. “But notwithstanding the fact that the raid should have never occurred, Garland and Wray should have ensured their agents sought consent from President Trump, notified his lawyers, and sought cooperation.”

You mean they should have asked nicely for several months first? Maybe sent a subpoena asking for all of the responsive documents just to make sure Trump knew they were really for real serious about this? Then asked again a few times? Something like that should have happened before a search warrant was executed? Hmmm…

…given the Supreme Court’s immunity decision and Judge Cannon’s dismissal of the prosecution on grounds that the Special Counsel’s appointment violated the appointments clause and his office was funded through an improper appropriation, there was no constitutional basis for the search or the subsequent indictment," Epstein writes.

They totally should have known what the Supreme Court was going to say two years after the search and never searched in the first place, obviously. /s

8500

I wouldn’t worry about it. This is like the election lawsuits in 2020. It won’t go anywhere, because I doubt Trump wants it to. He just wants the headline that he’s suing during this election.

He won’t go through the discovery process, sit for a deposition, etc. I welcome all of that, but I doubt it goes that far.

8501

All the druggies convicted by evidence collected with a no-knock warrant prick up their ears.

8502

There’s also the chance that if he is elected, his DOJ can declare him the winner of the lawsuit and award him a billion dollars. That would be some next level grifting!

8503

Any chance this could work?

MIAMI — A retired federal judge is among those asking an appeals court to reassign former President Trump’s indictment on charges of mishandling classified documents case to a new judge.

In documents filed with the 11th Circuit Court of Appeals, two groups of legal experts and former government officials say U.S. District Judge Aileen Cannon should be removed from the case.

…

Gertner and the legal scholars were joined in the motion by the government watchdog group, Citizens for Responsibility and Ethics in Government (CREW). They say if the appeals court overturns Cannon’s ruling, it would be the third time it’s reversed her in “a seemingly straightforward case about a former president’s unauthorized possession of government documents.”

…

They say Judge Cannon’s ruling ignored the “plain text” of the Appointments Clause of the Constitution which allows the Attorney General to appoint a special prosecutor. Her dismissal of the charges they say are “in clear defiance of binding Supreme Court precedent and the plain text of Congress’ statutes.” They’re asking the Appeals Court to reverse Judge Cannon’s ruling and to remove her from the case.

8504

I think that one is for a different thread. Yes, I know, with all of the legal actions Trump is entangled in, it’s tough to keep track.

8505

Damn. I was afraid I picked the wrong one. I did give it some thought. Unsuccessfully, it seems…