This is an adapted excerpt from the Aug. 26 episode of “The Last Word with Lawrence O’Donnell.”
On Monday, federal prosecutors filed a brief urging an appeals court to reverse Judge Aileen Cannon’s dismissal of the classified documents case against Donald Trump. Last month, Cannon, a Trump appointee, tossed out the case and ruled that special counsel Jack Smith was unlawfully appointed and funded.
Now, some things in the law are open to debate and reasonable disagreement and others are not. Every method of interpretation of the law — whether it’s text, history or precedent — is devastating to Cannon’s decision. Smith could go into the 11th U.S. Circuit Court of Appeals blindfolded with his hands tied behind his back and he would still win this every day of every week.
Smith could go into the 11th U.S. Circuit Court of Appeals blindfolded with his hands tied behind his back and he would still win this every day of every week.
Smith acknowledged as much in Monday’s brief, using words like nonsensical, misguided, strained and erroneous to describe Cannon’s ruling. I’d pay good money to read the first draft of that brief because he probably used some words that weren’t quite so restrained.
The truth is, a first-year law student could dismantle Cannon’s opinion — frankly, even a pre-law student. You don’t have to go to law school to see the clear faults in her argument.
Just for starters, and this is a point Smith emphasized in his brief, in 1974 the Supreme Court issued a landmark ruling in the Watergate case. In that ruling, the judges took the very laws that Attorney General Merrick Garland cited for the appointment of Smith and agreed it gave the AG power to appoint a special counsel. Cannon has argued the Supreme Court’s review of special counsel authority in that case was merely “dicta,” or a passing remark in the ruling that wasn’t necessary to the holding of the case. To put it mildly, that conclusion is nuts. Cannon claims the special counsel was appointed illegally and therefore Smith has no authority to issue an indictment. Well, the same thing was true in the Richard Nixon case. Nixon argued the special prosecutor subpoena should be quashed — that it was outside the bounds of the law. But the Supreme Court disagreed, ruling that there are specific statutes that authorize the appointment of the special counsel, so the subpoena could not be quashed. That’s just one of the many faults in Cannon’s ruling. With Smith’s brief now filed, I expect the 11th Circuit to reject her nonsensical opinion and get this case back on track.
Allison Detzel is an editor/producer for MS NOW.
Neal Katyal
Neal Katyal is a former U.S. acting solicitor general.
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