Tangle - Judge Cannon throws out Trump's classified docs case.

Starting point is 00:00:00 Got a mortgage? Chances are you're thinking about your payments right now. Need help? Ask your bank about relief measures that may be available to you. Learn more at Canada.ca slash it pays to know. A message from the Government of Canada. From Searchlight Pictures comes A Real Pain, one of the most moving and funny films of the year. Written and directed by Oscar-nominated Jesse Eisenberg and starring Eisenberg and Emmy Award winner Kieran Culkin, A Real Pain is a comedy about mismatched cousins who reunite for a tour through Poland to honor their beloved grandmother. The adventure takes a turn when the pair's old tensions resurface against the backdrop of their family history.

Starting point is 00:00:38 A Real Pain was one of the buzziest titles at Sundance Film Festival this year, garnering rave reviews and acclaim from both critics and audiences alike. See A Real Pain only in theaters November 15th. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. From executive producer Isaac Saul, this is Tangle. independent thinking, and a little bit of my take. I'm your host, Isaac Soule, and on today's episode, we're going to be discussing Donald Trump's case, the classified documents case, getting dismissed, thrown out the window. It's a big deal. I mean, maybe it doesn't really change anything because it didn't seem like this case was going to happen before the election,

Starting point is 00:02:02 but some interesting stuff here. This is one of those ones I have particularly strong feelings on, so I'm going to talk a bit about that. Before I pass it over to John, though, I want to give you a quick heads up that in light of some recent events, this Friday, we're going to do a deep dive on the Secret Service in our Friday edition of the newsletter. If you have questions about the Secret Service or its history that you want answered, feel free to write to us, staff, S-T-A-F-F, at readtangle.com with the subject line Secret Service Questions, and we're going to do our best to dig in and answer them in this special edition coming up on Friday. As always, a reminder that our written Friday editions are

Starting point is 00:02:43 for Tangle members only. You can go to readtangle.com and click membership to become a member. We are working on ad-free paywalled podcasts right now as we speak, which we hope to have coming for you very, very soon. All right, with that out of the way, I'm going to pass it over to John for today's main story, and I'll be back for my take. for today's main story, and I'll be back for my take. Thanks, Isaac, and welcome, everybody. Here are your quick hits for today. First up, U.S. Senator Bob Menendez, the Democrat from New Jersey, was convicted on all counts of accepting bribes of cash, gold, and a luxury car from three New Jersey businessmen. Number two, Secret Service officials said that former President Donald Trump had received

Starting point is 00:03:28 increased security detail due to an Iranian assassination threat, which was believed to be unrelated to Saturday's assassination attempt. Number three, an Israeli airstrike reportedly killed over 60 people in southern and central Gaza. One of the strikes hit a safe zone, according to the Associated Press. Number four, President Biden is expected to announce support for major Supreme Court reforms this week, including term limits and an enforceable ethics code. Separately, Biden proposed capping rent hikes at 5% on approximately 20 million existing apartment units for the next two years.

Starting point is 00:04:04 And number five, California Governor Gavin Newsom signed a bill banning school districts from notifying parents if their child uses different pronouns or identities as a different gender than their school record. federal judge and trump appointee alien cannon has thrown out the indictment charging trump with mishandling classified documents cannon ruled the appointment of special counsel jack smith is unconstitutional donald trump's campaign won a big legal victory in florida yesterday federal judge ended the criminal case against the former president for holding on to hundreds of classified documents from his term in office and then refusing requests to return them. Basically, it means one of the biggest legal threats to

Starting point is 00:04:55 former President Trump has really gone away for now. I mean, federal judge Eileen Cannon, who's a Trump appointee, threw out the case against Trump and two of his associates. Eileen Cannon, who's a Trump appointee throughout the case against Trump and two of his associates. On Monday, Judge Eileen Cannon dismissed the Department of Justice's case against former President Donald Trump for illegal retention of classified documents. In November of 2022, Attorney General Merrick Garland appointed Jack Smith as a special counsel to oversee two separate investigations of Trump, one pertaining to alleged efforts to interfere with the 2020 presidential election and the other related to classified documents. In June 2023, Smith indicted Trump on 37 counts of seven different charges, including willful retention of national defense information, false statements, conspiracy

Starting point is 00:05:40 to obstruct, and withholding classified records. The case was brought to the U.S. District Court of Southern Florida, where Judge Cannon has been assigned to preside over it. Cannon has been criticized by the left throughout the case for her inexperience and potential lack of impartiality, and two federal judges privately urged her to decline the case when it was assigned to her. Most recently, Cannon sparked controversy over her decision to indefinitely postpone the trial, which was originally scheduled for May. You can read our previous coverage of Cannon's indefinite postponement and our coverage of the initial charges in links in today's episode description. In a 93-page ruling, Cannon agreed with arguments advanced by Trump's legal team that Special Counsel Jack Smith was improperly appointed to his position. The defense argued in February that the Constitution's Appointments Clause

Starting point is 00:06:27 does not grant the Attorney General the power to appoint a special counsel without Senate approval. Cannon granted a delay to hear pretrial arguments in May, heard the constitutional appointment argument in June, and released her decision this week. The Appointments Clause requires that ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States be appointed by the president subject to the consent of the Senate, although Congress may vest the appointment to inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments. Judge Kanin found Smith's appointment a violation of this clause. The special counsel's position effectively usurps the important legislative authority,

Starting point is 00:07:10 transferring it to a head of department, and in the process threatening the structural liberty inherent in the separation of powers, Judge Cannon wrote on Monday. The Justice Department said it will appeal the ruling to the 11th Circuit in Atlanta, which issued a rebuke against Judge Cannon two years ago over her decision to appoint a special master to review the documents seized from Trump's Mar-a-Lago residence. Even if the 11th Circuit upholds Cannon's decision, the ruling still leaves open the possibility for a separate case against Trump to be brought under another prosecutor approved by the Senate. Regardless of the outcome of the

Starting point is 00:07:43 appeal, the additional delay ensures the case won't be decided prior to the Senate. Regardless of the outcome of the appeal, the additional delay ensures the case won't be decided prior to the election. Today, we're going to get into what the right and the left have to say about Kanan's decision, and then Isaac's take. We'll be right back after this quick commercial break. Whether renting, renewing a mortgage, or considering buying a home, everybody has housing costs on their minds. For free tools and resources to help you manage your home finances, visit Canada.ca slash ItPaysToKnow.

Starting point is 00:08:22 A message from the Government of Canada. From Searchlight Pictures comes A Real Pain, Canada.ca slash it pays to know. A Real Pain was one of the buzziest titles at Sundance Film Festival this year, garnering rave reviews and acclaim from both critics and audiences alike. See A Real Pain only in theaters November 15th. All right, first up, let's start with what the left is saying. The left is outraged by the decision, calling it legally dubious. Some argue Cannon's reasoning fails on both legal and historical merits. Others say Cannon is taking cues from the Supreme Court's conservative justices. In Newsweek, Thomas G. Malcasha wrote,

Starting point is 00:09:29 Cannon's decision begs to be overruled. Cannon's ruling seizes on the latest in a series of substanceless assaults Trump has made on every case brought against him. So far, she's been the only judge foolish enough to buy one of them. Cannon has relied on the subjective opinion that this job is too important to appoint under the authority invoked by the Attorney General. Cannon emphasized that the law allowing special counsel to be appointed says that they must be specially appointed under law, Malcasha wrote. Nonsense. A specific additional law does not give the Attorney General the power to appoint officials to detect and prosecute crimes against the United States. The judge relies on a ritualistic twisting and turning around word meaning.

Starting point is 00:10:10 What is an official? Cannon agrees that sometimes an official means someone chosen from outside an organization as well as from within. But of course, not in this case. In this very special case, in Cannon's opinion, officials don't include outsiders because other lower-level people like FBI agents can be appointed under the authority Smith cites, Maukasha wrote. If judges are just supposed to look at the words of the law and do what they say, Cannon's castration-by-association approach is pretty weak. It means the association of the special prosecutor words with the provisions about the FBI means the words don't mean what they say. So much for textualism. In the Atlantic, Paul Rosenzweig suggested, Kennan is ignoring both practical history and legal precedent. On the merits,

Starting point is 00:10:52 her opinion is a poor one, ignoring history and precedent. It will almost certainly be reversed on appeal. But Kennan's opinion is even more significant for what it says systematically about the American judiciary and its increasing hubris. Donald Trump is famous for saying that he alone can fix the nation. Judges now routinely say that they alone know what the law is or should be. Kennan is just the latest, perhaps most egregious example, Rosenzweig said. Worse yet, in her hubris, Kennan disregards both history and precedent. The first special counsel ever was appointed during the Grant administration to investigate the Whiskey Ring scandal. Since then, literally dozens of special counsels have been designated by attorney generals, including those

Starting point is 00:11:34 investigating Watergate, and most recently by Trump's own Department of Justice, Rosenzweig said. As to precedent, during the investigation of Richard Nixon, the Supreme Court explicitly acknowledged the power of the Attorney General. Her rejection of 150 years of history and the considered judgment of other courts is the paradigmatic example of a jurist substituting her own judgment for that of an earlier era. In the Boston Globe, Nancy Gertner said, Cannon's decision follows Justice Clarence Thomas' unethical lead. said, Cannon's decision follows Justice Clarence Thomas's unethical lead. On July 1st, Supreme Court Justice Clarence Thomas wrote a lengthy concurring opinion in Trump versus United States, making it clear that he thought the special counsel was appointed unlawfully and lacked

Starting point is 00:12:15 authority to bring cases against Donald Trump. U.S. District Judge Eileen Cannon, presiding over the classified documents case in Florida, got the message loud and clear. All she had to do was ignore precedent and put the Southern District of Florida heading on Thomas' concurring opinion. Poof. The case against Trump for wrongfully retaining some of the most sensitive of our nation's defense secrets was gone. Thomas' opinion was a great first draft, and what better time to issue the decision than the day Republicans were starting their nominating convention, allowing them to crow about Trump appointing judges who delivered

Starting point is 00:12:48 for him, including Cannon, Gertner wrote. The only good news from Cannon's ruling is that she decided it will allow an appeal by the Justice Department to the 11th Circuit Court of Appeals, which is likely to reverse her. They, too, are bound by precedent. Since this would be her third reversal, they reversed her bizarre rulings before Trump's indictment, they could finally remove her as they have done in other cases.

Starting point is 00:13:21 All right, that is it for what the left is saying, which brings us to what the right is saying. The right mostly supports Judge Cannon's reasoning, arguing she made a strong case that Jack Smith's appointment was unconstitutional. Some say the decision serves as a check on Biden's Justice Department. Others say the case is in shambles, even if Cannon's ruling is reversed. In National Review, Dan McLaughlin wrote, Trump dodges another bullet, Jack Smith. Expect a chorus of incredulity at Judge Cannon's thorough 93-page opinion, which reaches a conclusion embraced by Justice Clarence Thomas in a concurring opinion in the immunity case, McLaughlin said. In short, the argument goes like this. First, the power to initiate and

Starting point is 00:14:03 prosecute criminal cases in the name of the United States is an executive power that can only be exercised by an officer of the United States. Second, there are two ways to become an officer, and many positions meet both of them. You can be appointed by the president with Senate confirmation, or your position can be created by statute. Third, many special counsels, such as David Weiss, the special counsel for Hunter Biden, are already officers of the United States because they are currently serving as U.S. attorneys. Because of this, there have not been a lot of serious challenges to their appointments, but Smith was a private citizen when he was appointed. Fourth, Smith isn't appointed by

Starting point is 00:14:41 Biden. He isn't Senate confirmed, so he can only be an officer if some law created his position. Fifth, it didn't. Smith's role is created only by regulations issued by the Attorney General. Unlike the old independent counsel statute, there is no special counsel law. In Fox News, Greg Jarrett called the decision a rebuke of Biden's out-of-control DOJ. It never made sense or seemed right. With the wave of a wand, a private citizen was granted unlimited power to prosecute a former president of the United States. Smith and the Department of Justice will likely file an immediate appeal to a higher court.

Starting point is 00:15:18 But Cannon's well-reasoned 93-page opinion establishes a clarifying record of sound legal judgment that will be difficult to overcome, Jarrett said. At the heart of the federal judge's decision is the Appointments Clause of the Constitution, which provides the exclusive means for selecting all officers of the United States. They must be appointed by the president and confirmed by the Senate. Smith failed both of those requirements. How is it possible that an attorney general could vest in a private citizen the immense and unchecked power of a U.S. attorney when, in fact, Smith is not and never was? His role is not to assist an approved U.S. attorney but replace one entirely, Jarrett wrote. The erosion of Jack Smith's misbegotten prosecutions represents an important

Starting point is 00:16:00 course correction in the increasingly abusive tactics employed by President Joe Biden's Justice Department and his sycophantic Attorney General. In USA Today, Jonathan Turley said, it was not the law, but the lawyer who proved to be the problem. The Biden administration has argued that even asking about its authority is as absurd and frivolous as asking about ravens and writing desks. It notes that most courts have dismissed these claims with little argument or consideration. Yet, Kanan kept coming back to the question, why is a private citizen like a confirmed U.S. attorney, Turley wrote. Kanan found the question neither frivolous nor easy. Kanan noted that there does appear to be a tradition of appointing

Starting point is 00:16:41 special attorney-like figures in moments of political scandal throughout the country's history, but very few, if any, of these figures actually resemble the position of special counsel Smith. Jack Smith was himself the argument that would bring down his case, at least for now. The appointment question has good faith arguments on both sides, which Judge Kinnett acknowledged in her detailed opinion. She could be reversed on appeal, but this issue seems likely to go to the Supreme Court, Turley said. The problem for Smith is now another question worthy of the Mad Hatter. What can crawl and fly with only hands but no legs or wings? The answer is the one thing that Smith no longer has.

Starting point is 00:17:19 Time. All right, let's head over to Isaac for his take. All right, that is it for what the left and the right are saying, which brings us to my take. So earlier this week, I wrote about one of the difficult parts of this job, which is writing with compassion while also not extending the assumption of best intentions to people who may not deserve it, something I think is pretty important in politics. I've tried not to fall into the belief that Cannon is simply rewarding Trump for appointing her, and I've been very skeptical of that extreme argument against her. But her actions, in this case, have been suspicious and at times inexplicable, and with each cascading event, it becomes harder and harder to find other explanations for her

Starting point is 00:18:16 decisions. Very briefly, I'm going to do my best to explain why I think this decision is wrong in the simplest possible terms. Number one, every employee of the executive branch has to be either confirmed by the Senate or appointed to an inferior office as authorized by Congress. Jack Smith is not Senate confirmed, but there is a statute that allows him to hold his position just as it justified all special counsels that came before him. Number two, the Supreme Court has upheld the constitutionality of those special counsels repeatedly. Cannon, a district court judge, is duty-bound to respect the court's rulings. She found a clever way to ignore previous rulings related to this question, which

Starting point is 00:19:00 I don't buy and will explain in a second, but her argument would only matter if the Supreme Court made it. Cannon is not respecting court ruling. She's ignoring decades of Supreme Court precedent. Number three, a lot of people are noting that in a recent Supreme Court ruling, Justice Clarence Thomas broke from his eight other colleagues to say that appointing Jack Smith might be a violation of the Appointments Clause of Article 2. However, Thomas was alone in that position, and this ruling would almost certainly be overturned by the Supreme Court if it got there expeditiously. It won't. Number four, it's worth noting that even Clarence Thomas did not go as far as Cannon did. He raised essential questions about the office of the

Starting point is 00:19:42 special counsel, but we don't know whether he'd agree with Cannon's answers to those questions. Number five, the real-world implication of this ruling is nonsensical. Under Cannon's opinion, Attorney General Merrick Garland, who was directly appointed by Trump's political rival, would end up investigating Trump. Or, if Biden was accused of wrongdoing, it'd be his own attorney general, rather than a special counsel, investigating his actions. The entire point of special counsels is to prosecute executive branch wrongdoing while insulating the DOJ from the politics of doing so. Because my opinion was biased against Cannon's handling of the case going into this news breaking, I've spent most of the last few days stress testing my view by reading arguments

Starting point is 00:20:25 from the right defending her decision. Dan McLaughlin's piece under what the right is saying is the best argument I've found. A key part of McLaughlin's argument is that Smith, unlike some other special counsels, was a private citizen, not an officer of the United States like David Weiss, the special counsel for Hunter Biden, who was already serving as a U.S. attorney. Thus, according to McLaughlin, the only way for Smith to be legally appointed is if a law creates his position. McLaughlin argues that no such law exists and that Smith's role was created by regulations from the attorney general. But McLaughlin concedes a critical part in a single sentence toward the end of his argument. He says, quote,

Starting point is 00:21:10 there are a number of statutes that authorize varying kinds of hiring by the attorney general of people to assist the Justice Department in criminal cases. Cannon found none of them persuasive, which really is the entire ballgame. The statutes exist, but Cannon found none of them persuasive. And again, this is not a new question. Neil Katyal, the person who helped draft the statutes cited to appoint Smith, characterized his Cannon's claim as palpably false. Sarah Isker, a conservative analyst, wrote this in the dispatch, quote, The Supreme Court already looked into this question way back in 1974. In United States v. Nixon, the court unanimously

Starting point is 00:21:46 held that President Richard Nixon was required to comply with subpoenas from Special Prosecutor Leon Jaworski. Judge Cannon held that this language was not actually part of the court's holding, nobody had challenged the constitutionality of Jaworski's appointment, and there had been no briefings on that question, and therefore this language was not binding precedent, end quote. In other words, the Supreme Court already determined the legal authority of special counsels, but because they affirmed that in a case that wasn't challenging the constitutionality of appointing a special counsel, Cannon decided she could ignore it. At some point, the arguments here begin to hinge on very technical constitutional questions that I'll leave

Starting point is 00:22:25 to the experts whose opinions I'm referring back to. But there is a simple reality here. Cannon is making a novel ruling on a question that has been asked and answered many times over. Her ruling is likely to get overturned, probably by the 11th circuit, which has already overturned two of her decisions. In a normal timeline, that could be the kind of thing that forces Cannon off the case, and it still may. Yet, politically, none of that matters. Even before this ruling, the odds this case would be heard or finished before the election were practically zero, in large part due to how Cannon handled procedural issues, including one that was overturned. Now, the case is officially kaput. That's a genuine shame. I've criticized several of the prosecutions against Donald Trump. I've also criticized

Starting point is 00:23:10 special counsel Jack Smith's actions in this case and others. But there's no doubt that the classified documents charges against Trump were the most straightforward of all the charges against him, the ones he was most likely guilty of, and the ones I most preferred to see go to trial. As Jonathan Turley, a frequent Trump defender, put it, quote, From the outset, I've maintained that the Florida case was the greatest threat to Trump. Where the other cases had serious constitutional, statutory, and evidentiary flaws, the Florida case was based on well-established laws and precedent, end quote. In the end, the merits

Starting point is 00:23:45 of the case didn't matter, but the judge did. That's a shame, both for our justice system and for the American public, who certainly deserve the hearing on the questions at hand. We'll be right back after this quick break. We'll be right back. Whether renting, renewing a mortgage, or considering buying a home, everybody has housing costs on their minds. For free tools and resources to help you manage your home finances, visit Canada.ca slash ItPaysToKnow. A message from the Government of Canada. Based on Charles Yu's award-winning book,

Starting point is 00:24:57 Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. All right, that is it for my take. Instead of a reader question today, I want to respond to some reader and listener feedback. Quite a few people wrote in yesterday frustrated by my characterization of J.D. Vance's inexperience. Nearly all the critical feedback from readers made two points. his inexperience. Nearly all the critical feedback from readers made two points. One,

Starting point is 00:25:50 would I have said the same about former President Barack Obama? And two, what about Vice President Kamala Harris's experience? So I'd like to respond to those criticisms all at once here. First, yes, I think I would have made similar arguments about Obama when he ran for president in 2008. If Tangle existed then, we would have shared the very mainstream concerns about his inexperience. That same inexperience is part of why he tapped Joe Biden, a veteran of the Senate, as his vice president. Even so, Obama served for seven years as a state senator and four years as a U.S. senator, that's twice as much as Vance, before running for president. Some people value Vance's experience in the Marine Corps over Obama's experience as a constitutional law professor, which is totally

Starting point is 00:26:30 fair. But Obama certainly had a lot more experience governing and legislating when he ran for president than Vance does right now. Number two, it's a pretty similar answer for Harris. She also had four years as a senator under her belt when Biden chose her as his running mate, along with six years serving as attorney general of the most populous state in the country. Those are two executive-style big league roles. It would be tough to argue that Vance has comparable experience right now. Finally, a lot of people accuse me of some kind of bias for writing critically about Vance. Funny enough, I actually thought I said more nice things about him than most of the politicians we analyze. Some even snarkily asked if I've ever uttered a critical word about Harris. In fact,

Starting point is 00:27:14 yes, in 2022, we published an entire 3,500-word piece titled What Is Kamala Harris Doing? It was not a very friendly portrait. Anyway, one of the most common responses I get from readers and listeners accusing me or us of bias is, well, did you ever write about that? And even though that's not a good argument, more often than not, the answer is yes. So if you're ever curious, here's a reminder that you can find our entire archive of over 1500 posts and podcasts on our website by going to readtangle.com and clicking on our archive. All right, that is it for my response to some reader criticisms from yesterday. I'm going to send it back to John for the rest of

Starting point is 00:27:55 the podcast, and I'll see you guys tomorrow. Have a good one. Thanks, Isaac. Here's your Under the Radar story for today, folks. Robert F. Kennedy Jr. confirmed the authenticity of a leaked video of him having a phone conversation with former President Donald Trump and apologized to Trump for the video's release. In it, Trump and Kennedy can be heard discussing vaccines, President Biden's call to Trump after the assassination attempt, and Trump's insistence that he is going to win the 2024 election, which Kennedy appears to agree with. Kennedy's son,

Starting point is 00:28:30 Bobby Kennedy III, posted the video before deleting it a couple of hours later, and wrote on X that Trump could have picked a unity ticket. Instead, he picked, J.D., fire all the unvaccinated nurses, Vance. CBS News has this story, and there's a link in today's episode description. All right, next up is our numbers section. The number of days since Jack Smith announced the indictment of former President Donald Trump in the classified documents case is 404. The percentage of U.S. adults who think Trump should be convicted of a crime in the classified documents case against him is 47%, according to a July 2024 YouGov poll. The percentage of U.S. adults who think Trump should not be convicted in the case is 36%. The approximate number of documents with classification markings found by authorities at Trump's Mar-a-Lago estate

Starting point is 00:29:21 is 340. The percentage of U.S. adults who think the federal government can be impartial in investigations and prosecutions of political opponents of the president is 38%. The percentage of U.S. adults who think the federal government cannot be impartial in investigations and prosecutions of political opponents of the president is 37%. The percentage of U.S. adults who think a judge can be impartial in presiding over a case against the person who appointed them is 36%. And the percentage of U.S. adults who think a judge cannot be impartial in presiding over a case against the person who appointed them is also 36%. And last but not least, our Have a Nice Day story.

Starting point is 00:30:04 And last but not least, our have a nice day story. Ridwell, a Seattle-based startup, works to recycle materials that typical recycling facilities aren't able to. Specifically, Ridwell and companies like it specialize in working with multilayer plastics and plastic film, materials that often have come in contact with food. Ridwell alone has saved 22 million pounds of plastic from landfills thus far. The company has 100,000 members in eight metro areas in seven states, and similar recyclers exist in North Carolina, Philadelphia, and elsewhere. Civil Eats has this story, and there's a link in today's episode description. All right, everybody, that is it for today's episode as always if you'd like to support our work please go to retangle.com and sign up for a membership we'll be right back here

Starting point is 00:30:53 tomorrow for isaac and the rest of the crew this is john law signing off have a great day y'all peace our podcast is written by me isaac saul and edited and engineered by john wall Peace. manager. Music for the podcast was produced by Diet 75. If you're looking for more from Tangle, please go to readtangle.com and check out our website.

Tangle - Judge Cannon throws out Trump's classified docs case.

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