General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsGarland and the DOJ are NOT holding up the prosecution of the MAL case. Who is?
Judge Cannon, through her appointment of the Special Master.
But there's hope. Cannon has already lost her attempt to keep the DOJ from accessing the classified documents. Today there's a hearing on the DOJ's appeal regarding the appointment of the Special Master.
Don't all the complainers want the strongest possible case to be made against Trump? I do.
So now we have to wait to see what the appeals court eventually rules after today's hearing.
Garland's an easy target for our frustration, but we're waiting on the COURTS, not on the DOJ.
https://www.emptywheel.net/2022/11/22/11th-circuit-showdown-the-fight-to-get-the-documents-to-charge-against-trump/
A 2PM Eastern today, an 11th Circuit panel including William Pryor, Britt Grant, and Andrew Brasher will consider DOJs expedited motion to overturn Judge Aileen Cannons decision to appoint a Special Master. Oral arguments should be available here. The briefs are here:
DOJ Appeal
Trump Response
DOJ Reply
SNIP
For the reasons I laid out here, the decision the 11th Circuit makes, and how quickly they make it, will dictate how quickly DOJ could charge the stolen document case.
SNIP
Trumps team has been aggressively trying to prevent DOJ from keeping possession of these documents, by claiming that the first packet is both personal, attorney-client, and Executive privileged, and by claiming that other pardon packets can be Trumps personal possession. Its highly likely that Raymond Dearie will rule for DOJ on both those disputes. But if and when he does, Trump would object and Aileen Cannon would get to consider it anew.
That would make these documents unavailable for investigative purposes until after the new year. Whereas, if the 11th Circuit rules for DOJ, the government would be able to present these to a grand jury within weeks (assuming a quick decision and SCOTUS declining to review the decision, as happened with the last decision).
hlthe2b
(102,575 posts)and given how low their reputation is falling, not for long.
But, yeah, I can't wait to hear the 11th Circuit's decision on the political sell-out Aileen Cannon.
pnwmom
(109,028 posts)Fiendish Thingy
(15,719 posts)But she is the delay in the docs case, but as emptywheel projects, the appeal should be resolved by Dec/Jan.
pnwmom
(109,028 posts)that Garland hasn't been acting quickly enough.
Fiendish Thingy
(15,719 posts)If Garland/Smith are acting quickly enough on the MAL docs case.
gab13by13
(21,514 posts)because of her involvement in the Obama film.
and so the shit storm will begin.
pnwmom
(109,028 posts)The special counsel doesn't use she/her pronouns.
Ohio Joe
(21,776 posts)You made an OP on it:
https://www.democraticunderground.com/100217401621
You were informed
Repeatedly
that Gaetzs claim was impossible but
Here you are, making it again
Cha
(298,139 posts)msfiddlestix
(7,289 posts)if we could have an interactive chart "pinned" somewhere on du, then we can reference which case is being held up, appealed, decided etc, including which court and their respective judges.
LetMyPeopleVote
(146,018 posts)msfiddlestix
(7,289 posts)I'm just now seeing this post, where I left off several hours ago. I'm imagining there's been some reporing and posted here on du on how it went... I'll take a looksie.. ty
LetMyPeopleVote
(146,018 posts)I and others had fun listening to the oral arguments in this case before the 11th Circuit
Link to tweet
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Here is one good summary of the oral argumenta
Link to tweet
The government already cites the 5th circuit precedent invoked by the 11th circuit (a hint to Chapman and the first Richey factor - a callous disregard for constitutional rights). 2/
Judge Pryor asks Joshi (government) if there's ever been a case where anyone got their shit back pre-indictment without a callous disregard factor). Judge asks if the first Richey factor is Dispositive. Joshi says that's his view, and other courts show its the most important. 3/
But even if it wasn't dispositive (required), he doesn't meet the other three Richey factors anyhow. Judge Grant asks when a movant would have a need to get stuff back under rule 41. Joshi says maybe if a 3rd party like a business needed their stuff back to do business... 4/
But plaintiff would have to show a need and trump can't have one because he already has the documents besides the classified ones. (I'm paraphrasing a lot here). Joshi says trump doesnt want the stuff back, he wants to stop DoJ from using them. 5/
The proper remedy for that would be to file a motion to suppress (Judge asked what an adequate remedy would be). in your brief, you argued we should reverse and remand with instructions to dismiss. 6/
but because this is an appeal for an injunction, if you were right, we would vacate cannon's order over a lack of equitable jurisdiction. So instead of reverse and demand shouldn't we just vacate and not reverse? 7/
Joshi respectfully disagrees saying if the jurisdictional merits are lacking, your court has the authority to not only reverse and remand. Judge says "but isn't it that we vacate?" Joshi says as long as you're not vacating for factual findings. 8/
(They're discussing a technicality on how to kill cannon's order. lol) 9/
Now three minutes for Trusty rebuttal. As to jurisdiction, process needs to be described. Pryor asks are you aware of a SINGLE decision by a federal court where they exercised equitable jurisdiction in a pre-indictment scenario where the search was unlawful? 10/
Trusty: blah blah blah no. There's no case law. But there's no situation in the country where a president raided a former president's home? Judge: do you think "raid" is the proper term?" Trusty: no, sorry for using a loaded term. HAHA 11/
Pryor: but your brief doesnt even argue that the first richey factor of calloused disregard for constitutional rights... if you can't establish that, WHAT ARE WE EVEN DOING HERE? lolol 12/
The judges keep asking Trusty whether he's arguing the legality of the search and seizure. Trusty uses the word RAID again and immediately apologizes. He's rambling about something about this is unprecedented. No shit, bro. lolol 13/
Trusty is now arguing that the first Richey factor isn't necessary - which was what the 11th circuit based their decision on the classified documents on. He's citing the same case law he used when he lost that case. 14/
Pryor asks Trusty "does it matter? the precedent of Chapman binds us." Trusty argues Chapman is misstating the law. He's now arguing "faith in the criminal justice system" as cited by Cannon. 15/
Judge asks if he wasn't the former president, would this be any different? Trusty says they're not looking for special treatment for president trump, but there's a context. Another judge says Trusty didn't answer the question. 16/
Trusty says everyone has the fourth amendment right. Judge Pryor says "so there is no difference?" Trusty says there's no secret that they have concerns about PRA, executive privilege etc. 17/
Pryor says that since that argument was never made, it is a secret to us. lolol this is GOLD. "we have to determine when it's proper for a district court to do this in the 1st place. other than the fact that this involves a former POTUS, everything else is indistinguishable. 18/
...and we have to be concerned about the precedent we would create by allowing any other defendant interfere with the executive branch's investigation by asking for special counsel. 19/
Trusty is now mad the search warrant included the ability to take items that are co-mingled with classified documents which gave them carte blanche to take whatever and that's a real 4th amendment concern. 20/
Judge: yeah but you never made that argument. Trusty says "things have changed". (sorry about all these typos) 21/
Trusty says there's prejudice and it isn't realistic for the government to complain that they can't investigate. (Wow, so he's saying the cops can't ever seize anything). Trusty is now again arguing about the richey factors. 22/
Pryor "the problem is that you view the injunction as the most overblown part - but think of it from our view. the judiciary doesn't interfere with investigatorial decisions. Thats the who nature of this kind of jurisdiction. 23/
Trusty's answer again is that this is an extraordinary case. Basically trump should be above the law without directly saying that. 24/
Trusty says Dearie has a hearing December 1st and there are about 1000 documents under dispute. Judge asked what you disagree about? Trusty says privilege, personal records, etc (their crazy arguments that stealing documents makes them personal) 25/
Joshi's rebuttal. first, regarding the timeline, yes, dearie should be done by the middle of next month. But there could be more briefings, and arguments, and probably appeals. Delay is fatal to the vindication of the criminal law. 26/
Joshi reiterates that there is no irreparable harm because plaintiff has all these documents. Also says there's nothing wrong with the search warrant. It was precisely descriptive and that's exactly what we took. 27
Judge: besides, isn't that also a new arguemtn from Trusty? Joshi: yep. that was going to be my second point: trump keeps moving the goalposts. He argued first they were declassified. Now today I'm hearing about a Frank's hearing. 28
I think this just illustrates how anomalous this jurisdiction is and what a bad precedent it would be and i think the court should reverse. Judge Pryor says we are adjourned. END/
pnwmom
(109,028 posts)the judges sounded sympathetic to the DOJ's views, not Trump's.
Hermit-The-Prog
(33,596 posts)pnwmom
(109,028 posts)and they didn't sound aggravated with the DOJ.
Hermit-The-Prog
(33,596 posts)It reads like the Judges were annoyed with Trusty for not being able to cite a reason for them being there. Granted, it's not a transcript, but it is hilarious.
pnwmom
(109,028 posts)I agree they weren't sympathetic to Trusty's arguments.
Hermit-The-Prog
(33,596 posts)Ohio Joe
(21,776 posts)Its good stuff, I wanna rec it
LetMyPeopleVote
(146,018 posts)Takket
(21,726 posts)Not surprised the drumpf arguments are so bad because his lawyers know damn well they had nothing to argue. They brought a pile of bullshit to loose cannon because they knew she's corrupt but they also knew they were only buying time because eventually they would have to bring this to a real judge(s).
the only point from the very beginning was to delay delay delay, just like they will buy themselves a few more weeks by begging SCOTUS to step in after 11C eviscerates them
its absurd.
iemanja
(53,137 posts)DOJ cannot continue investigating. It's one thing to appear at a hearing, and another to violate the terms of the Special Prosecutor's appointment.
pnwmom
(109,028 posts)that has been working on the investigation all along. They're going to continue investigating, but they'll be reporting to Smith, not Garland.
LetMyPeopleVote
(146,018 posts)Jack Smith has read all of the pleadings and has approved the oral arguments.
Link to tweet
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pnwmom
(109,028 posts)recovering from surgery related to a bike accident.
LetMyPeopleVote
(146,018 posts)iemanja
(53,137 posts)How do you know this will be different?
Additionally, even if he uses people from DOJ's team, the investigation has now been turned over to the SP. It won't be proceeding within DOJ apart from Smith.
pnwmom
(109,028 posts)design the car and drive it at the same time.
And the DOJ has already made it clear that Smith will simply be taking over the ongoing management of the case within the DOJ.
I don't know what you mean by "It won't be proceeding within DOJ apart from Smith." Why would it need to? The DOJ investigators will continue working, but instead of reporting to Garland, they'll now be reporting to Smith.
As Laurence Tribe pointed out when this first was announced, this will EXPEDITE decisions, because Garland has had to divide his attention between managing the Trump cases and the whole rest of a 150K member department. Smith will be able to focus all his attention on managing the Trump cases.
iemanja
(53,137 posts)You seem to think the Special Prosecutor is just a formality, that DOJ will proceed as though Smith doesn't exist.
I see no reason to believe that. Special Prosecutors set up their own offices and hire their own staff. It makes no sense to maintain that DOJ will proceed as though there were no special prosecutor. I get this is part of the defend Garland and every other person who ever had a D anywhere near their name, but I'm not buying it. There are enough people who share your goals. You don't need to push them on me.
pnwmom
(109,028 posts)Jack White is a Special Counsel, and he won't have a separate new staff, though he might hire some additional people. He is going to be managing the work of the attorneys who are ALREADY investigating Trump. They won't be continuing on as if he doesn't exist. They'll be continuing with him as their new BOSS.
I get that you think it's still 1999, but it's not.
In the wake of Watergate, Congress passed the Ethics in Government Act, which changed the system of appointing a special prosecutor. The attorney general could still appoint a special prosecutor but the individual was selected by a three-judge panel. The law was reauthorized in 1983 when the term special prosecutor was dropped for independent counsel and again in 1987, before expiring in 1992. Congress reinstated the law in 1994 before letting it lapse in 1999.
https://www.usatoday.com/story/news/politics/onpolitics/2017/05/18/special-counsel-vs-special-prosecutor-difference/329016001/
The first investigation, Garland said, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election, or with the certification of the Electoral College vote held on or about January 6, 2021.
. . . Smith is not taking over the investigations into the rioters who actually broke into the Capitol on January 6. Those investigations, which have led to hundreds of prosecutions already, will still be overseen by the US Attorneys Office for the District of Columbia. (The House January 6 committees investigation is a separate matter; they cannot charge anyone criminally and are focused on writing a report on their findings before Republicans take over the chamber in January.)
The second probe assigned to Smith is the ongoing investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation, Garland said.
https://www.vox.com/policy-and-politics/23466627/jack-smith-special-counsel-garland-trump
And in the 11th circuit proceeding today, a filing signed by Smith says he's already reviewed all the documents in the MAL case and has approved of all the filings.
Fiendish Thingy
(15,719 posts)Nothing like what DOJ has been doing for the past two years anyway.
Each special counsel is directed by their letter of appointment, which can be different for each SC.
iemanja
(53,137 posts)That DOJ will proceed as though he doesn't exist?
Fiendish Thingy
(15,719 posts)Smith will (reports are he already has) step into his role and access all the resources that were in place before he was appointed.
What has changed is the authority structure, and the insulation from interference that DOJ doesnt normally have.
pnwmom
(109,028 posts)Last edited Wed Nov 23, 2022, 03:00 AM - Edit history (2)
Now Smith will be their direct report, and Smith will report to Garland.
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