If a president came to power following a predecessor from the other party whose administration committed a series of crimes, prosecuting those people for those crimes would inevitably look like revenge. It’s not.
Sorry Frankie - Orange's own DOJ indicted Flynn - easily. Because they had all of the receipts and he was guilty as fuck.
Now he forced out more top DOJ loyalists, who weren't willing to brazenly crime for him. And put in a Florida slip-and-sue shyster. And she only got indictments on two charges. That never happens - pre-Mango.
Your Moron Mussolini already killed his case with his compulsive tweeting.
What is "all the receipts"? Flynn was railroaded, and that is established fact.
Trump walked into the presidency cold, in 2017. He had no established cabal. All kinds of horrible things were done by 'his' people. But they weren't done by Trump, nor by his direction.
You do not need proof to indict, but you do need some level of proof to convict. If you do not indict, then no gets the opportunity to see the evidence. But if you routinely indict government workers without strong evidence, you corrupt the system.
I don't understand the word "precedence" being used in the subtitle. How on earth did the previous lawfare against Trump and others on the right not set the precedence. It's like willful blindness to the truth if you don't see that. I don't like lawfare, if this is what the Comey indictment is, but the left set the precedent, that's for sure.
Agree with other commenters. Didn't the Biden administration enact lawfare against Trump? Also, Comey's alleged crimes and known actions were a serious attack on democracy - by the head of the FBI. Let the courts decide.
Started with the Obama Admin before the Biden admin. The Steele Dossier is probably one of the most fundamentally un-American things to happen in my lifetime and I’m no fan of Trump.
Nope. The Steele dossier was not an administration document and was investigated appropriately and resulted in no indictment. Comey was investigated and also determined to be unworthy of indictment. The difference is one administration accepted that its rival would not be indicted the other proceeded to prosecute. A huge difference
As an expat in France here judges are NOT elected but appointed by an education magistrate board who proposes candidates based on merit, educational excellence, case work. It’s completely apolitical (as much as it can be). Our US judges shouldn’t not be politically elected… it’s just absurd to me. This should not be a standard for appointments !! This needs to change.
"The CSM itself is not appointed solely by politicians or solely by magistrates — it’s deliberately composed of judges, prosecutors, lawyers, members of the Conseil d’État, and citizens appointed by top state authorities" - Kath (you)
Those are all politicians at one level or another. Call it what you want, but judges are still appointed by politicians there.
Conseil supérieur de la magistrature (CSM) is the constitutional body responsible for safeguarding judicial independence. It advises on and, in many cases, decides appointments, promotions, and disciplinary actions for magistrates (judges and prosecutors).
The CSM itself is not appointed solely by politicians or solely by magistrates — it’s deliberately composed of judges, prosecutors, lawyers, members of the Conseil d’État, and citizens appointed by top state authorities. This balance is meant to guarantee independence from both political power and self-regulation by the judiciary alone.
It’s one of the better systems I’ve seen. It’s why Sarkozy was able to be convicted for campaign finance violations .👍🏼
Letting crime go unprosecuted is a much more dangerous precedent. Look at San Francisco. Look at Philadelphia. When you excuse crime you get more crime.
Newsflash: the "500+ patriots" were prosecuted, and aggressively so. Also, I'm curious if your 500+ number includes the 275 FBI confidential informants/agents who participated in the "destructive activities"? And if warranted, prosecute Homan.
Trump’s campaign officials met with people claiming to represent Russia to get dirt on Hillary Clinton. That was worthy and even required investigation. That meeting was evidence of collusion with a foreign government to interfere with the election but found ultimately to be insufficient for an indictment. Nothing about that was invented.
I tend to like your articles yascha, even if i dont always agree with everything you say. But these comment sections, man its like some high school shit down here. If this is how people really think, we are boned. Then again, how else did we end up here except this bickering, trying to score a point on the ops. Weve turned ourselves into the middle east, eye for an eye, and all that. Except we're a nation of cowards, so our fighting happens online.
Maybe im assuming too much about what these comment sections represent, idk. What i do know is we shouldve taught our people how to *think*, instead of the regurgitation ad nauseum everybodies so good at.
It’s important to let government officials knowingly give a judge false information to wiretap the opposition candidate, and then, when he wins, leak false classified info to imply the elected president is treasonous, because if we punished that sort of thing, people might think it was retaliation.
While I agree with the underlying sentiments in your piece your lack of understanding of human nature surprises me. This situation has and predictably would have developed
into a classic Old Testament response-an eye for an eye. I totally agree that it bodes ill for our experiment in democracy. To me it signifies just how badly damaged our polity is. Instead of demonizing Trump it would be far more productive to propose political solutions to this problem which is most likely going to get worse. I have zero confidence that a resurrected and newly elected Democratic Administration would rise to the occasion and try to make our judicial system work for all. It will just resort to the same old tit for tat. I’m politically non binary and don’t support either party.
So despite what Mount says there’s little doubt Russia has interfered in every election since 16 on behalf of Trump. Trump went on to be convicted of crimes more serious than Comey is being accused. So instead of trying not to appear vengeful the Biden administration declined to charge Trump with instigating 1/6. That was a mistake?
It's no mystery how a candidate with 34 felony convictions gets re-elected President of the United States. Most of the voters did not take the New York jury's verdict seriously. They didn't care much that Trump had been impeached, either. Or that he was found liable for a rape in which the accuser doesn't know what year it happened. It wasn't Trump who reduced prosecution, impeachment or litigation to a farce, it was the desperation of his political enemies.
A few things. I wouldn't be here if I did not respect the majority of what is posted. I deeply appreciate the broad variety of viewpoints. It's in that spirit that I would like to provide mine concerning today's offering.
Yascha Mounk's claim that his decision to be an "In-group critic" rather than "out-group detractor" on its face suggests that he is less concerned about the gravity of what deserves criticism or detraction than he is on who is at fault. His claim that the media already says enough about Trump, thus leaving him the opportunity to focus on the left, is a symptom of the false equivalence that poisons so much political coverage. To his credit, he admits the indictment of Comey is undeniably a monstrous red flag, but if it took that act to trigger his alarm bells he might want to get the mechanism checked.
In particular, the fact this indictment is taking place in the context of claims, based primarily on the flimsiest of pretexts relating to the killer of Charlie Kirk and the Dallas shooter, that there is a wave of violent left-wing extremism justifying a "whole of government" response to root it out would seem worthy of some attention.
Worse, additional context is provided by Trump's claim there will be more prosecutions, singling out George Soros and Reid Hoffman for targeting. And if that weren't enough, how about the investigations launched earlier this spring into ActBlue and Media Matters? The "lawfare" targeting Comey is hardly sui generis, but to read this account you'd almost be led to believe that the proverbial red line hadn't been crossed earlier on multiple occasions. It has. Repeatedly.
Also this claim is inaccurate: "And it [Bragg's indictment of Trump relating to the Stormy Daniels situation] used a previously untested and highly unusual legal construct, according to which Trump’s alleged commission of a misdemeanor under New York law was elevated to a felony on the theory that he was doing so in furtherance of, or to conceal, another crime—apparently a federal election violation that the state never made an attempt to prove."
First, novel fact patterns often lead to novel legal arguments--and if you know of a similar fact pattern to the Stormy Daniels payoff and coverup in the content of a federal election, please let me know.
Second, the prosecution said there were three other crimes the underlying misdemeanor of falsifying business records could have facilitated, and it left the jury members to decide which applied in their deliberations. This is indeed novel, but the judge approved it. I'm sure it's a subject of Trump's appeal. But the Manhattan DA's office had been considering a RICO action against Trump going back years, and ultimately decided that it was best left to the NY attorney general to bring a civil action against Trump for those offenses--a case she won. (The damages have been successfully challenged on appeal, but the underlying conviction of fraud has been upheld, though the judges also did express at least three opinions on that issue, deciding to keep the conviction intact to allow further appeals.)
Furthermore, those same charges, if taken up by the SDNY, could have led to a federal RICO action against Trump, but Merrick Garland's DOJ decided not to pursue them, just as it decided not to pursue the 8 counts of obstruction of justice outlined in the Mueller Report.
Finally, if not for judge Aileen Cannon's embrace of an outlying legal theory on the appointment of special counsels, one of the strongest cases against Trump, those relating to his mishandling of classified documents, might well have moved forward to trial. Trump employed every delaying tactic available to prevent the other SC case, concerning January 6th, to proceed. (And claims the DOJ "over-charged" the other January 6th defendants are equally specious. First, anyone acquainted with federal prosecutions knows that defendants always claim they've been over-charged, because federal prosecutors charge everything they think that can prove beyond a reasonable doubt. The fact SCOTUS, like Aileen Cannon, embraced an outlier legal theory concerning what the stature regarding interference in an official proceeding entails is not evidence that "lawfare" was used against them but that these judges decided to use lawfare against the DOJ.) If anything is undermining trust in the justice system, I'd suggest that plays a major part. (And that doesn't even take into account the historically and constitutionally dubious theories of originalism and the unitary executive.)
Suggestions that Trump was unfairly treated by prosecutors or the justice system writ large are a bitter pill to swallow. The fact that some give traction to such misconceptions only makes that medicine more repellent.
Judge Cannon was correct. This is not an outlying legal theory but another of the battles between textualists and progressives within the legal profession. Congress and only Congress, and especially not agencies, has the right to create Special Counsel laws. The Constitution does not allow for agencies to create laws for Special Counsels. This is a pushing back on the adminsitrative state which has been going on for some time. If you don't like the laws or the Constitution then change it, but do not wake up one day and decide we are all going to reinterpret things - that is anarchy.
"In order to properly examine the pertinent statutory question about Congress’s conferral of authority to the Attorney General, it is important to understand that, regardless of whether Attorney General Garland had statutory authority to create an office of Special Counsel for the Mar-a-Lago and January 6 cases—a question I address later in this essay—two other things are clear:
(i) The Attorney General had statutory authority to hire Jack Smith to work in the Department of Justice (which Trump does not contest); and
(ii) The Attorney General also had authority to assign the supervision of the two criminal cases to anyone working at DOJ.
Those two Attorney General authorities, together, are sufficient to resolve the question before Judge Cannon—namely, whether it is lawful for Jack Smith to supervise the Mar-a-Lago prosecution ...
The rest of the piece addresses the rest of Judge Cannon's opinion. I find that analysis compelling. Thanks for you comment.
Yup. Progressive organizations are going to have progressive views. You're going to have to dig deeper. As I said, this is a battle between textualists and progressives.
Unfortunately, Garland appointed Jack Smith as a Special Prosecutor, and not as a regular prosecutor, and it makes a difference. He could have hired him as a regular DoJ counsel but he chose not to for political reasons. So the question is whether Jack Smith was properly appointed as a Special Prosecutor which has legal and political implications.
We are seeing a pushback against 50 years of progressive legal advances, and the Jack Smith case is but one of the many fronts.
I’ll quote the article you cited: “Which side is right? In my view, this is a genuinely close question.” I find Cannon’s strict interpretation of “officers” vs “officials” but her liberal interpretation of “prosecute” but one of several ares where it is clear she was arguing toward a foregone conclusion. That isn’t textualism except in the minds of partisans. You said you worried about anarchy. Throwing out 50 years of precedent on pretexts as thin as these, invites the chaos you very reasonably fear. SCOTUS is suffering its lowest popular support in generations precisely because of this kind or result-premised reasoning.
At least Cato gives full credence to all aspects of the argument (unlike justsecurity.org), but c'mon, you gotta read to the end:
"Judge Cannon’s key point thus stands: The statute seems an odd location to find the authority to appoint federal officials possessing powers on par with U.S. attorneys."
"Even if Congress did statutorily vest an appointment power in the attorney general, there is another potential problem with Jack Smith’s service. The option to vest appointments in the head of a department applies only to the appointments of “inferior officers.”
The rest of the analysis also supports the result.
Prior to Watergate only Presidents appointed Special Prosecutors per the Constitution's Appointments Clause. As a direct result of Watergate, Congress enacted statute that allowed the AG to do so. But this law is NO LONGER IN FORCE. In 1999 Janet Reno wrote regulations that provided for the AG to appoint Special Prosecutors and this has become practice. The central issue here and it is at the heart of all of these matters, is that Agencies do not have the statutory authority to create laws (regulations) that are not directly authorized by Congress, and they especially do not have the authority to write laws that contravene the Constitution.
As far as SCOTUS public opinion, that is the last thing SCOTUS or any of us should be focused on. I realize that CNN and MSNBC have put it all out that SCOTUS is politicized, I just don't agree for the most part. This is a push back against progressive reinterpretation of the laws and the expansion of agency lawmaking as a result of Congress' dereliction of duty.
I think the Just Security analysis was not only thorough but compelling. I realize we will not reach any accord on this point, so I will wish you good night.
One side invents a hoax against a newly elected President. The other side prosecutes crimes. And you side with the former?
About that "hoax"...
https://en.m.wikipedia.org/wiki/Trump_Tower_meeting
Wikipedia. Sure, buddy.
FInd your buddies in video game parlors.
If a president came to power following a predecessor from the other party whose administration committed a series of crimes, prosecuting those people for those crimes would inevitably look like revenge. It’s not.
The case against Comey is weak. So no points there.
He lied. Talk to General Flynn about how that works.
Maybe yes and maybe no, there is no proof other than the words of someone who is unreliable.
Well, how about this then? Bondi should bankrupt him with attorney fees to admit it and make a plea deal like they did Gen. Flynn.
Sorry Frankie - Orange's own DOJ indicted Flynn - easily. Because they had all of the receipts and he was guilty as fuck.
Now he forced out more top DOJ loyalists, who weren't willing to brazenly crime for him. And put in a Florida slip-and-sue shyster. And she only got indictments on two charges. That never happens - pre-Mango.
Your Moron Mussolini already killed his case with his compulsive tweeting.
What is "all the receipts"? Flynn was railroaded, and that is established fact.
Trump walked into the presidency cold, in 2017. He had no established cabal. All kinds of horrible things were done by 'his' people. But they weren't done by Trump, nor by his direction.
They are coming for you Antifa Parker.
You do not need proof to indict, but you do need some level of proof to convict. If you do not indict, then no gets the opportunity to see the evidence. But if you routinely indict government workers without strong evidence, you corrupt the system.
It is not a simple issue.
Genuinely can’t tell if you’re talking about Biden or Trump. Perhaps that was your point?
I don't understand the word "precedence" being used in the subtitle. How on earth did the previous lawfare against Trump and others on the right not set the precedence. It's like willful blindness to the truth if you don't see that. I don't like lawfare, if this is what the Comey indictment is, but the left set the precedent, that's for sure.
Comey's indictment does not set a precedent. It follows a precedent.
it's pretty week
Exqueeze me, but who started the "lawfare" trend? What was that expectation, outcome, the end?
Starting a war is not advised, in any domain, because they are very, very hard to stop.
But here we go, down the memory hole. 🕳 📃
Agree with other commenters. Didn't the Biden administration enact lawfare against Trump? Also, Comey's alleged crimes and known actions were a serious attack on democracy - by the head of the FBI. Let the courts decide.
Started with the Obama Admin before the Biden admin. The Steele Dossier is probably one of the most fundamentally un-American things to happen in my lifetime and I’m no fan of Trump.
Nope. The Steele dossier was not an administration document and was investigated appropriately and resulted in no indictment. Comey was investigated and also determined to be unworthy of indictment. The difference is one administration accepted that its rival would not be indicted the other proceeded to prosecute. A huge difference
A huge difference without distinction, of course things move faster down a slippery slope.
"No distinction" for cultists.
How could the dossier have been an attempt to influence the election when it wasn't made public until after the election?
As an expat in France here judges are NOT elected but appointed by an education magistrate board who proposes candidates based on merit, educational excellence, case work. It’s completely apolitical (as much as it can be). Our US judges shouldn’t not be politically elected… it’s just absurd to me. This should not be a standard for appointments !! This needs to change.
Some state judges are elected, Federal judges are appointed, like the Supreme Court justices.
Federal judges in USA are appointed by POLITICIANS… therein lies a big difference between FR & USA.
"The CSM itself is not appointed solely by politicians or solely by magistrates — it’s deliberately composed of judges, prosecutors, lawyers, members of the Conseil d’État, and citizens appointed by top state authorities" - Kath (you)
Those are all politicians at one level or another. Call it what you want, but judges are still appointed by politicians there.
I think we can learn from other countries to try improve the independence of our judiciary!
Who appoints the magistrate board?
Conseil supérieur de la magistrature (CSM) is the constitutional body responsible for safeguarding judicial independence. It advises on and, in many cases, decides appointments, promotions, and disciplinary actions for magistrates (judges and prosecutors).
The CSM itself is not appointed solely by politicians or solely by magistrates — it’s deliberately composed of judges, prosecutors, lawyers, members of the Conseil d’État, and citizens appointed by top state authorities. This balance is meant to guarantee independence from both political power and self-regulation by the judiciary alone.
It’s one of the better systems I’ve seen. It’s why Sarkozy was able to be convicted for campaign finance violations .👍🏼
Interesting thanks. I agree that the USA has a serious problem with politically motivated judges.
Letting crime go unprosecuted is a much more dangerous precedent. Look at San Francisco. Look at Philadelphia. When you excuse crime you get more crime.
Newsflash: the "500+ patriots" were prosecuted, and aggressively so. Also, I'm curious if your 500+ number includes the 275 FBI confidential informants/agents who participated in the "destructive activities"? And if warranted, prosecute Homan.
Again, the J6ers WERE PROSECUTED and WERE SENTENCED. Trump’s pardons doesn’t change that fact.
Trump’s campaign officials met with people claiming to represent Russia to get dirt on Hillary Clinton. That was worthy and even required investigation. That meeting was evidence of collusion with a foreign government to interfere with the election but found ultimately to be insufficient for an indictment. Nothing about that was invented.
This is all *your* fault.
No, its all YOUR fault!
I tend to like your articles yascha, even if i dont always agree with everything you say. But these comment sections, man its like some high school shit down here. If this is how people really think, we are boned. Then again, how else did we end up here except this bickering, trying to score a point on the ops. Weve turned ourselves into the middle east, eye for an eye, and all that. Except we're a nation of cowards, so our fighting happens online.
Maybe im assuming too much about what these comment sections represent, idk. What i do know is we shouldve taught our people how to *think*, instead of the regurgitation ad nauseum everybodies so good at.
It’s important to let government officials knowingly give a judge false information to wiretap the opposition candidate, and then, when he wins, leak false classified info to imply the elected president is treasonous, because if we punished that sort of thing, people might think it was retaliation.
Comey is the very dangerous precedent whose indictment will redress historical injustices...
While I agree with the underlying sentiments in your piece your lack of understanding of human nature surprises me. This situation has and predictably would have developed
into a classic Old Testament response-an eye for an eye. I totally agree that it bodes ill for our experiment in democracy. To me it signifies just how badly damaged our polity is. Instead of demonizing Trump it would be far more productive to propose political solutions to this problem which is most likely going to get worse. I have zero confidence that a resurrected and newly elected Democratic Administration would rise to the occasion and try to make our judicial system work for all. It will just resort to the same old tit for tat. I’m politically non binary and don’t support either party.
So despite what Mount says there’s little doubt Russia has interfered in every election since 16 on behalf of Trump. Trump went on to be convicted of crimes more serious than Comey is being accused. So instead of trying not to appear vengeful the Biden administration declined to charge Trump with instigating 1/6. That was a mistake?
I’ve got to quit reading this guy
Little doubt, and even less facts.
Thousands of pages of Marco Rubio chaired Congressional report - released during Trump's first term.
https://www.lawfaremedia.org/article/collusion-reading-diary-what-did-senate-intelligence-committee-find
https://en.wikipedia.org/wiki/Russian_interference_in_the_2016_United_States_elections
That last part, especially.
Wrong. Now go take your supplements and ivermectin.
What do you mean by "interfered with"? Would the same apply to China?
It's no mystery how a candidate with 34 felony convictions gets re-elected President of the United States. Most of the voters did not take the New York jury's verdict seriously. They didn't care much that Trump had been impeached, either. Or that he was found liable for a rape in which the accuser doesn't know what year it happened. It wasn't Trump who reduced prosecution, impeachment or litigation to a farce, it was the desperation of his political enemies.
A few things. I wouldn't be here if I did not respect the majority of what is posted. I deeply appreciate the broad variety of viewpoints. It's in that spirit that I would like to provide mine concerning today's offering.
Yascha Mounk's claim that his decision to be an "In-group critic" rather than "out-group detractor" on its face suggests that he is less concerned about the gravity of what deserves criticism or detraction than he is on who is at fault. His claim that the media already says enough about Trump, thus leaving him the opportunity to focus on the left, is a symptom of the false equivalence that poisons so much political coverage. To his credit, he admits the indictment of Comey is undeniably a monstrous red flag, but if it took that act to trigger his alarm bells he might want to get the mechanism checked.
In particular, the fact this indictment is taking place in the context of claims, based primarily on the flimsiest of pretexts relating to the killer of Charlie Kirk and the Dallas shooter, that there is a wave of violent left-wing extremism justifying a "whole of government" response to root it out would seem worthy of some attention.
Worse, additional context is provided by Trump's claim there will be more prosecutions, singling out George Soros and Reid Hoffman for targeting. And if that weren't enough, how about the investigations launched earlier this spring into ActBlue and Media Matters? The "lawfare" targeting Comey is hardly sui generis, but to read this account you'd almost be led to believe that the proverbial red line hadn't been crossed earlier on multiple occasions. It has. Repeatedly.
Also this claim is inaccurate: "And it [Bragg's indictment of Trump relating to the Stormy Daniels situation] used a previously untested and highly unusual legal construct, according to which Trump’s alleged commission of a misdemeanor under New York law was elevated to a felony on the theory that he was doing so in furtherance of, or to conceal, another crime—apparently a federal election violation that the state never made an attempt to prove."
First, novel fact patterns often lead to novel legal arguments--and if you know of a similar fact pattern to the Stormy Daniels payoff and coverup in the content of a federal election, please let me know.
Second, the prosecution said there were three other crimes the underlying misdemeanor of falsifying business records could have facilitated, and it left the jury members to decide which applied in their deliberations. This is indeed novel, but the judge approved it. I'm sure it's a subject of Trump's appeal. But the Manhattan DA's office had been considering a RICO action against Trump going back years, and ultimately decided that it was best left to the NY attorney general to bring a civil action against Trump for those offenses--a case she won. (The damages have been successfully challenged on appeal, but the underlying conviction of fraud has been upheld, though the judges also did express at least three opinions on that issue, deciding to keep the conviction intact to allow further appeals.)
Furthermore, those same charges, if taken up by the SDNY, could have led to a federal RICO action against Trump, but Merrick Garland's DOJ decided not to pursue them, just as it decided not to pursue the 8 counts of obstruction of justice outlined in the Mueller Report.
Finally, if not for judge Aileen Cannon's embrace of an outlying legal theory on the appointment of special counsels, one of the strongest cases against Trump, those relating to his mishandling of classified documents, might well have moved forward to trial. Trump employed every delaying tactic available to prevent the other SC case, concerning January 6th, to proceed. (And claims the DOJ "over-charged" the other January 6th defendants are equally specious. First, anyone acquainted with federal prosecutions knows that defendants always claim they've been over-charged, because federal prosecutors charge everything they think that can prove beyond a reasonable doubt. The fact SCOTUS, like Aileen Cannon, embraced an outlier legal theory concerning what the stature regarding interference in an official proceeding entails is not evidence that "lawfare" was used against them but that these judges decided to use lawfare against the DOJ.) If anything is undermining trust in the justice system, I'd suggest that plays a major part. (And that doesn't even take into account the historically and constitutionally dubious theories of originalism and the unitary executive.)
Suggestions that Trump was unfairly treated by prosecutors or the justice system writ large are a bitter pill to swallow. The fact that some give traction to such misconceptions only makes that medicine more repellent.
Judge Cannon was correct. This is not an outlying legal theory but another of the battles between textualists and progressives within the legal profession. Congress and only Congress, and especially not agencies, has the right to create Special Counsel laws. The Constitution does not allow for agencies to create laws for Special Counsels. This is a pushing back on the adminsitrative state which has been going on for some time. If you don't like the laws or the Constitution then change it, but do not wake up one day and decide we are all going to reinterpret things - that is anarchy.
I'll refer you to this analysis: https://www.justsecurity.org/98037/doj-special-counsel/
"In order to properly examine the pertinent statutory question about Congress’s conferral of authority to the Attorney General, it is important to understand that, regardless of whether Attorney General Garland had statutory authority to create an office of Special Counsel for the Mar-a-Lago and January 6 cases—a question I address later in this essay—two other things are clear:
(i) The Attorney General had statutory authority to hire Jack Smith to work in the Department of Justice (which Trump does not contest); and
(ii) The Attorney General also had authority to assign the supervision of the two criminal cases to anyone working at DOJ.
Those two Attorney General authorities, together, are sufficient to resolve the question before Judge Cannon—namely, whether it is lawful for Jack Smith to supervise the Mar-a-Lago prosecution ...
The rest of the piece addresses the rest of Judge Cannon's opinion. I find that analysis compelling. Thanks for you comment.
Yup. Progressive organizations are going to have progressive views. You're going to have to dig deeper. As I said, this is a battle between textualists and progressives.
https://www.cato.org/commentary/analyzing-judge-cannons-opinion-was-jack-smith-legally-appointed
I can find a dozen more also.
Unfortunately, Garland appointed Jack Smith as a Special Prosecutor, and not as a regular prosecutor, and it makes a difference. He could have hired him as a regular DoJ counsel but he chose not to for political reasons. So the question is whether Jack Smith was properly appointed as a Special Prosecutor which has legal and political implications.
We are seeing a pushback against 50 years of progressive legal advances, and the Jack Smith case is but one of the many fronts.
I’ll quote the article you cited: “Which side is right? In my view, this is a genuinely close question.” I find Cannon’s strict interpretation of “officers” vs “officials” but her liberal interpretation of “prosecute” but one of several ares where it is clear she was arguing toward a foregone conclusion. That isn’t textualism except in the minds of partisans. You said you worried about anarchy. Throwing out 50 years of precedent on pretexts as thin as these, invites the chaos you very reasonably fear. SCOTUS is suffering its lowest popular support in generations precisely because of this kind or result-premised reasoning.
At least Cato gives full credence to all aspects of the argument (unlike justsecurity.org), but c'mon, you gotta read to the end:
"Judge Cannon’s key point thus stands: The statute seems an odd location to find the authority to appoint federal officials possessing powers on par with U.S. attorneys."
"Even if Congress did statutorily vest an appointment power in the attorney general, there is another potential problem with Jack Smith’s service. The option to vest appointments in the head of a department applies only to the appointments of “inferior officers.”
The rest of the analysis also supports the result.
Prior to Watergate only Presidents appointed Special Prosecutors per the Constitution's Appointments Clause. As a direct result of Watergate, Congress enacted statute that allowed the AG to do so. But this law is NO LONGER IN FORCE. In 1999 Janet Reno wrote regulations that provided for the AG to appoint Special Prosecutors and this has become practice. The central issue here and it is at the heart of all of these matters, is that Agencies do not have the statutory authority to create laws (regulations) that are not directly authorized by Congress, and they especially do not have the authority to write laws that contravene the Constitution.
As far as SCOTUS public opinion, that is the last thing SCOTUS or any of us should be focused on. I realize that CNN and MSNBC have put it all out that SCOTUS is politicized, I just don't agree for the most part. This is a push back against progressive reinterpretation of the laws and the expansion of agency lawmaking as a result of Congress' dereliction of duty.
I think the Just Security analysis was not only thorough but compelling. I realize we will not reach any accord on this point, so I will wish you good night.