Legal AF by MeidasTouch - FINALLY! Jack Smith Makes BIG FILING in Trump DOC APPEAL

Episode Date: August 27, 2024

In breaking news in the Mar a Lago prosecution of Trump, Special Counsel Jack Smith schools Federal Judge Cannon in a new filing with the 11th Circuit Court of Appeals, telling the Court that the Judge does not understand the most basic principle of being a federal judge— that the Supreme Court is her boss, and their rulings are BINDING ON HER, to have the Mar a Lago prosecution reinstated. Michael Popok also explains why Special Counsel Smith, smartly, has not overtly pressured the 11th Circuit to remove Cannon, leaving it to the judgment of the Court instead, showing true independence without playing politics Go to http://auraframes.com and use code LEGALAF to get $20 off Aura's best-selling frame Visit https://meidastouch.com for more! Join the Legal AF Patreon: https://Patreon.com/LegalAF Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af MissTrial: https://meidasnews.com/tag/miss-trial The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Coalition of the Sane: https://meidasnews.com/tag/coalition-of-the-sane Learn more about your ad choices. Visit megaphone.fm/adchoices

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Add your teen to your Uber account today. This is Michael Popak, Legal AF strap in. We've got a new breaking news story. We've got the filing by Jack Smith to the 11th Circuit against Judge Cannon in order to vacate her decision to ignore a hundred years or more of precedent dating back to the 1850s and finding that Jack Smith was improperly appointed as a special counsel, that a special counsel is a figment of our imagination, not properly funded by Congress or the Attorney General, and dismissing the Mar-a-Lago case to boot. All wrong, according to the new filing

by the special counsel who actually exists, is employed by the Department of Justice, who was properly appointed by the Attorney General and funded by the Department of Justice to prosecute all criminals, including in this case, specially appointed to prosecute Donald Trump. In the new filing that we have our hands on right here, something unique, something interesting for me as a practicing lawyer in the 58 pages, they are not as of right now seeking honor requests to

have Judge Cannon removed. I've said that Jack Smith has under the three strikes you're out and the Lemon Law of Florida on the 11th Circuit has grounds to have sought the removal of Judge Cannon because this is her third major fundamental misapprehension of the law and therefore I think she's disqualified herself to continue to preside over the case. But I will point out that at least for now Jack Smith is not asking for the removal of Judge Cannon. He thinks sending it back to her with proper instructions from her bosses at the 11th Circuit and the three judge panel there is enough

to keep this case back on track. And he also didn't seek an emergency review. This will be on its normal track, filing now by Jack Smith, a new filing in September by Donald Trump, another filing by Jack Smith, and then oral argument, I would presume, in October by the 11th Circuit.

Let me break down the argument that Jack Smith has brought to the 11th Circuit, showing that, well, let's put it this way in layman's terms, that Judge Cannon should have a dunce cap put on her head and she should be put in the corner and made to recite on a chalkboard over and over again, I do not understand the law of the special counsel, you know, like in Simpsons. So, let's just go over what they've said. They said fundamentally, this judge doesn't seem to understand a fundamental premise, a fundamental

concept that all federal judges need to understand. It's called vertical starry decisis. What it means is the federal courts sit in a hierarchy headed by the United States Supreme Court. When the United States Supreme Court rules and is heard on an issue. The federal courts under it, in a vertical integration, have to follow the precedent set for the courts above them. That means Judge Cannon has to follow the teachings of the 11th Circuit and the Supreme Court,

and she failed to do that. She rejected a case from 1974 called US versus Nixon. She is the only judge, Jack Smith reminds the 11th Circuit, in the history of jurisprudence, in the history of federal practice, ever to reject US versus Nixon, and ever to find that a special counsel has not been properly appointed by the Attorney General. That's saying something. And they, in their brief, which I will recite from, go back to the 1850s and the 1900s, every time a new special counsel, special prosecutor, independent counsel, whatever you call it, has been properly appointed through the powers of

the Constitution and authorized by Congress. Except this judge, of course, got it wrong. Hence, the dunce cap and having to sit in the corner and write on a chalkboard, I do not understand precedent, nor how special counsels are appointed. Now, let's look at the starting point. There's two starting points for this analysis that's in their brief. Article 2, Section 2, Clause 2 of the US Constitution, what we call the Appointments Clause 2 of the U.S. Constitution, what we call the Appointments Clause. It's the way we are able to fill out the entirety of our federal government through the Appointments Clause. It says that Congress may vest the appointment of all inferior officers in the

heads of the department, meaning the head of the Department of Justice is the Attorney General. The Attorney General is able to establish inferior offices and officers under that office through the power of Congress and has been so authorized. There are a handful of actual statutes. Title 5 of the US Code, Title 28 of the US Code, authorizes the attorney general to set up both US attorneys in each district, which prosecute crime for the federal government in each district, and to set up inferior special attorneys to prosecute crime and prosecute offenses assigned to them. It's all right there in the codebook. Whether you look at 28 U.S.C. 533 or 510 or 509 or all of them, it gives that power to the Attorney

General, a power that's been recognized, as I said before, in 1974 by U.S. versus Nixon and the Supreme Court then, which is the law of the land, and has not been overturned and Judge Cannon was obligated to follow. Now, you start with that clause. You then say, all right, has the attorney general properly exercised the power to appoint an inferior officer? And is the special counsel such an inferior officer? And obviously, the answer is yes.

I mean, through that power, just to be clear, as pointed out in the briefing, the Department of Justice and the Attorney Generals, starting in 1909 through 1983, have established 23 main officers, meaning US attorneys, eight divisions, six departments, and three boards, all under the Attorney General. How did Judge Cannon think all those came to be? Where did all of those people, organizational chart people, come from? They obviously came from the exercise under 28 U.S.C. 510 of our U.S. Code of the Attorney

General's power appointed in them and afforded to them by the U.S. Constitution. That's where it all started. And ever since 1948, as Jack Smith has told the 11th Circuit or reminded them, there have been two distinct ways to appoint inferior officers under the Attorney General. If it's a U.S. attorney, it's under Title 28. If it's a US attorney, it's under Title 28. If it's a special attorney like special counsel, it's under Title 5. And Jack Smith said, besides ignoring vertical stare decisis, which by the way is taught day one, moment one in judge academy, judge school, when you become a federal judge, there's actually a judge college you have to go to, and you're taught that precedent above your head, you have to apply. You can't ignore. She tried to ignore

it, Judge Cannon, by arguing, well, I understand there's a US versus Nixon case, but they sort of just assumed, they made an assumption about the validity of the special prosecutor there against Richard Nixon, but they didn't really address the issue wrong. Because when Supreme Courts make an assumption and say that they're not addressing an issue, they actually use language that indicate that they are doing just that, and that is missing from US versus Nixon, as pointed out by the special counsel. Now, let me read to you from certain pertinent parts of this brief. Not all the brief, I'm not trying to filibuster this optic. Let me give you the key parts.

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U.S. Constitution Article II, Section 2, Clause 2, Congress may vest a head of department with the power to appoint an inferior officer. Here, Congress has authorized the Attorney General by law to appoint as an inferior officer the special counsel. In U.S. v. Nixon from 1974, the Supreme Court determined that the Attorney General had statutory authority under 28 U.S. Code sections 509, 510, 515, and 533 to appoint a special prosecutor comparable to the special counsel. In other words, Judge Cannon had to ignore 509, 510, 515, and 533 of a statute in order

to reach her conclusion. Apart, listen to this language, apart from the district court below, meaning Judge Cannon, every court, not every other, every court to consider the question has concluded that the Supreme Court's determination that those statutes authorized the Attorney General to appoint the Watergate Special Prosecutor was necessary to the decision that a justiciable controversy existed and therefore constitutes a holding that binds lower courts' vertical starry decisis ignored by the court. The district court aired page 9 when it deemed that the conclusion unpersuasive dicta.

Nixon's statutory analysis was integral to the court's ultimate conclusion. B. The statutes that the Supreme Court cited in Nixon back in 74, section 509, 510, 515, and 533. I'm going to make this a drinking game in a minute. Authorize the attorney general to appoint the special counsel here. And then they go through the analysis of all of those sections. Let's move forward. Talk about history. Special counsels are great in talking about history, especially when the judge got it

wrong. Page 12 of the brief, the long history of attorney general appointments of special counsels confirms the lawfulness of this special counsel's appointment from before the creation of the Department of Justice. That's back in the 1800s. Until the modern day,

attorneys general have repeatedly appointed special and independent councils to handle federal investigations, including the prosecution of Jefferson Davis. That's back in old timey times of before the Civil War, alleged corruption in federal agencies, including the Department of Justice itself, Watergate and beyond. The District Court, Judge Cannon, erroneously disregarded this history as spotty or ad hoc, giving undue emphasis to superficial differences in the appointments and roles of special and independent counsels.

In other words, Judge Cannon got all tied up in knots about different titles, about the nomenclature. Well, that was a special counsel. Well, that was a special prosecutor. Well, that was an independent counsel. They're all different a special prosecutor. Well, that was an independent counsel. They're all different. No, they're not all different. They're just the different, you know,

arose by any other name as a special counsel prosecutor. And that's how the judge should have ruled. So she got tied up, you know, the hobgoblins of, you know, the rest got tied up with these differences without looking at the similarities. And then of course, they said that the Department of Justice has properly funded the special counsel's office through a permanent indefinite appropriation

that Congress enacted to quote, pay all necessary expenses of investigations and prosecutions by independent counsel pursuant to the provisions of 28 USC 59 or 591 or other law. What is that talking about? Before 1999, there was an independent counsel law on the books. That's where Ken Starr prosecuting and investigating Bill Clinton came from. That's where Whitewater came from.

But after Whitewater, both parties at the time looked at each other and said, yeah, we don't like independent counsels. Let's get rid of them. But what they kept on the books was a funding mechanism to allow the attorney general to continue. It's not like they said, we don't need special prosecutors. We don't need people from outside the department slightly independent from the attorney general to go after crime, especially when there's an appearance of conflict. They said, we still need that, but let the attorney general through the inferior office appointment clause of the Constitution appoint it. Don't get Congress involved. And we'll fund it because they kept on the books

that particular funding provision, which I just read you from 1987, or other law. The or other law is the attorney general appointed the special counsel and is using triggering that provision that I just read you to fund the special counsel with an indefinite indefinite funding. It's one of the rare times where Congress said, you don't need to come keep coming back to us for money. We're just going to indefinitely fund it. When we fund the Department of Justice, you can use whatever money you want from there to fund special prosecutors and special counsel. And that's what they've done. And then the rest of the brief is just, you know, gilding the lily of how wrong the Judge Cannon was. But the most interesting part for me, and the part's a little bit of a head scratcher, but let me see if I can

explain it, is at the end of the brief, what they ask for. In the conclusion, page 57, right there, right above the line for Jack Smith Special Counsel and the other lawyers involved from the Department of Justice. All inferior officers employed by the Department of Justice improperly funded Judge Cannon. It says the court should reverse the dismissal order of Judge Cannon and remand for further proceedings. What does that mean? That means remand means send it back to the trial judge. It doesn't say, and consider reassigning the trial judge because she screwed up so many times fundamentally. That's what I would have liked to have seen. Now, why didn't Jack Smith actually ask for that? I think he's in a little bit of a pickle. I think, seen. Now, why didn't Jack Smith actually ask for that?

I think he's in a little bit of a pickle. I think, first of all, he doesn't have to ask for it in order to get it. I think that the 11th Circuit, on its own, under its own vested inherent authority and statutory authority, has the ability to reassign a judge. And they could, rather than having Jack Smith push on it. We already live in an era where the other side is claiming there's the weaponization of the Department of Justice, that it's all lawfare against him. And now we've seen two prosecutors, well, three prosecutors, back to back to back in

the last several days teach Donald Trump a lesson and MAGA a lesson, if they're willing to listen. But there isn't anything other than independent prosecutorial decision making without politics. In New York, the Manhattan District Attorney and State Court just told Judge Mershon that they're not taking a position as to whether he should delay the sentencing or not scheduled for September 18th

against Donald Trump for his 34 felony count conviction. They're gonna let the judge make their own decision and they're staying agnostic. Smart, judge is gonna make their own decision and they're staying agnostic. Smart. Judge is going to make his own decision. You don't need the Manhattan DA putting their thumb on the scale, if you will. Also, it indicates no lawfare. Secondly, the Biden-Harris Department of Justice is backing Donald Trump in a new case. In a case that's been actually not new, but a new decision, in which they've taken the position that when Donald Trump

cleared the park behind the White House of all protesters so he could make his now infamous walk to the church, surprise he didn't got struck down by lightning on the way, with his upside down Bible, no less. Note to the fundamentalist Christians out there, that civil liberties violation is within the powers of the presidency even if we don't like them and they're defending Donald Trump as a result. We may not like it, but that is the precedent that a mature attorney general,

Department of Justice, and Biden administration has decided to make. And now we have our third example. Jack Smith basically telling the 11th Circuit, read between the lines. You want to remove Judge Cannon? You probably have grounds, but we're not going to be the ones that demand it and bang our chests and bang the table demanding it. Smart, smart.

11th Circuit, you're fully empowered to do it on your own. You don't need the other side to ask for it. And it looks a little unseemly for the special counsel to do it on your own. You don't need the other side to ask for it. And it looks a little unseemly for the special counsel to do it. So I think in retrospect, as I'm concluding this hot take, I commend the Department of Justice for leaving it to the 11th Circuit without fear or favor, without blowing smoke or sunshine on them about your position about the removal of Judge Cannon. Now if Judge Cannon gets removed they can't say Jack Smith made it happen! He didn't. He didn't. He's just looking for the case to be reinstated, all right, and sent back to her with proper instructions. That's what remand means.

Remand for further proceedings. Tell her to reopen the case and get this case back on track. And he's banking on the 11th Circuit that they're going to do just that. When you're ahead on points, right? I was taught this early on by one of my trial attorney mentors. When you are winning, sit down. Don't ask for more. Don't snatch defeat for the jaws of victory. I think Jack Smith is on the precipice of winning this and he doesn't need to strong arm the 11th circuit or be seen to be

overbearing in his manner or in his presentation. We'll continue to follow it all right here on the Midas Touch Network and on Legal AF. We'll break this down even further on our upcoming episode of Legal AF at the midweek on Wednesdays. I co-anchor it with Karen Friedman, a former prosecutors, then we do it again with a new version on Saturdays with Ben Mycelis. We sit at the intersection of law and politics just like this one, so you don't have to.

And as practicing lawyers who practice in the very courts that we talk about, we don't blow smoke or sunshine and we do it in a way I don't think exists anywhere on YouTube or on the internet or in podcasts on Legal AF. You can watch our recording of Legal AF at 8 p.m. Eastern time right here on this Midas Touch Network. Or if you want to be old school like me, you can listen to it on any audio podcast platform of your choice. Just plug in Legal AF. So until my next hot take, until my next Legal AF, this is Michael Popak reporting. anywhere else, all for the price of a couple of cups of coffee. Join us at patreon.com slash legal AF.

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