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Trump documents case may not be over

Prosecutor could try to get judge removed

By: Aysha Bagchi
USA Today

..... Former President Donald Trump's criminal documents case was dismissed Monday, [07/15/2024] but that doesn't mean it's over.
..... Within hours of the ruling, the Justice Department authorized an appeal, and several legal experts said special counsel Jack Smith may even try to get federal Judge Aileen Cannon off the case.
..... Cannon agreed with Trump, who nominate her for the federal bench, that Smith's appointment in the case violated a provisions of the Constitution that requires "Officers of the United States" to be appointed by the president and confirmed by the Senate. Cannon wrote that Smith needed to be appointed that way unless Congress enacted a law that authorized the appointment.
..... Several legal experts characterized the ruling as a major outlier, arguing the decision contradicts a series of past court rulings approving special counsel appointments.
..... Cannon has issued a series of controversial pro-Trump rulings in the case and received a sharply-worded rebuke on appeal.
..... "I have been suspicious of the 'Judge Cannon is undermining the rule of law to protect Donald Trump' line of argument," New York University law professor Noah Rosenblum posted on X. "I hadn't been following the case closely though. Now I feel very naive. This is bonkers. She is just making thing sup."
..... Peter Carr, a spokesperson for Smith's office, said in a statement to USA Today that the Justice Department had authorized an appeal.
..... Trump praised the ruling, calling for an end to the "Weaponizaiton of our Justice System" in a post on Truth Social

What happens next

..... Smith's expected appeal could drag on for months or more than a year, particularly if the Supreme Court decides to weigh in.
..... Smith will need to first appeal to the U.S. court of Appeals for the 11th Circuit within 30 days. It will likely take at least months for that court to get briefs from both Smith and Trump, potentially hold oral arguments. and then issue a decision. If the Supreme Court takes the issue up, at minimum the appeal would probably drag on for months.
..... If Trump becomes president in January, [2025] questions about the fate of his classified documents case could become moot for years at least. Trump could - in a move that his opponents would likely call an assault on the rule of law - order the Justice Department to drop the charges and fire any attorney general who refuses to do so.

Could justices side with Trump?

..... Some in the legal community did rise to defend Cannon's ruling in the hours that followed, suggesting it could be upheld at the Supreme Court, which recently ruled that portions of the indictment against Trump in his federal election case will have to go based on the doctrine of presidential immunity from prosecutions.
..... John Malcolm, who was a Justice Department official under George W. Bush and serves as vice president of the conservative Heritage Foundation's Institute for Constitutional Government, said in a statement that Congress never passed a statute authorizing Attorney General Merrick Garland to appoint Smith.
..... Malcolm noted that Republican-appointed Supreme court Justice Clarence Thomas recently appeared to invite judges to scrutinize the constitutionality of special counsels, writing that he wasn't suer any special counsel's office had been 'established by Law.' as the Constitution requires."
....."This serious issue, which Justice Thomas recently raised in his concurring opinion in the presidential immunity case, will finally receive the attention that it deserves and may well end up being resolved by the Supreme Court," Malcolm wrote.

Departing from prior rulings

..... Special counsels and their precursor, independent counsels, are not new. Both Democratic and Republican administration have appointed them to oversee investigations with greater-than-usual independence, and courts have consistently upheld those appointments. an attorney general may hope to avoid the appearance of a conflict of interest on politically sensitive issues by appointing a special counsel.
..... Hunter Biden, for example, lost his efforts in his California tax-related case and in the Delaware gun-related case to challenge the appointment and funding of special counsel David Weiss. In 1974, the Supreme Court said Congress had vested the attorney general with eh power to appoint special prosecutor Leon Jaworski during the Watergate scandal.
..... Cannon said Monday [07/15/2024] the question of Jaworski's authority wasn't disputed or briefed, so the high court's statement n that opinion didn't constitute a ruling by which she is bound.
..... when Garland appointed Smith to head investigations into Trump, he said the move underscored the Justice Department's "commitment to both independence and accountability in particularly sensitive matters."
..... Even before Monday's [07/15/2024] decision, Cannon had indefinitely delayed a trial in the case, effectively guaranteeing Trump won't face a verdict before the November [2024] election. She also asked lawyers on both sides of the case to weigh in on potential jury instruction that legal experts said would amount to dismissing the case entirely.

Removing the judge

..... Barbara McQuade, a former U.S. attorney, said on X the ruling "may actually be good news for Jack Smith, who can now immediately appeal to 11th Circuit and ask for case to be reassigned to a new judge."
..... Norman Eisen, who was special counsel to the House Judiciary Committee during Trump's first impeachment, posted on X that the 11th Circuit has a "multiple strikes and you're out" rule.
..... "When a judge displays repeated & outrageous bias (at the point we have to conclude cannon has) they will remove the jurist," Eisen said. "smith will likely ask for removal."

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