Aileen Cannon Unwound the Stolen Documents Prosecution Back to November 2022

/46 Comments/in , , /by

There’s a detail of Judge Cannon’s order throwing out the stolen documents case that people seem to be missing.

She unwound the prosecution back to the time when Jack Smith took it over from when Jay Bratt had the lead.

Here, as in Lucia, the appropriate remedy is invalidation of the officer’s ultra vires acts. Since November 2022, Special Counsel Smith has been exercising “power that [he] did not lawfully possess.” Collins, 594 U.S. at 258. All actions that flowed from his defective appointment—including his seeking of the Superseding Indictment on which this proceeding currently hinges [ECF No. 85]—were unlawful exercises of executive power. Because Special Counsel Smith “cannot wield executive power except as Article II provides,” his “[a]ttempts to do so are void” and must be unwound. Id. at 283 (Gorsuch, J., concurring). Defendants advance this very argument: “any actions taken by Smith are ultra vires and the Superseding Indictment must be dismissed” [ECF No. 326 p. 9]. And the Court sees no alternative course to cure the unconstitutional problem.

There are a lot of people saying that DOJ can just charge the 18 USC 793 charges in SDFL or charge obstruction in either DC or SDFL.

But they can only do so relying on evidence obtained prior to Smith’s appointment. Some key things they got after that?

  • Evan Corcoran’s testimony
  • Yuscil Taveras’ cooperation
  • Some, but not all, of the surveillance footage
  • Testimony from Mark Meadows’ ghost writers, reflecting Trump’s knowledge that he had not declassified the Iran document

Probably, a simple obstruction charge limited to Trump’s refusal to respond to the subpoena might survive (though such a case would be stronger with Corcoran’s testimony). But there is no way they could charge the stolen documents case without recreating some of this investigation.

Update: Jack Smith has announced he will appeal.

image_print
46 replies
  1. Mike_16MAY2022_0915h says:

    How far back would it unwind the Hunter Biden investigation? You’ve mentioned on X the statute of limitation issues, but was there also any new evidence obtained after Weiss’ Aug 11 2023 appointment?

    • emptywheel says:

      Well, the gun case would not be chargeable. They got a lot more evidence after August 11. For example, they had never gotten a warrant to access his digital data for gun crimes. They tested a pouch for cocaine afterwards.

      On the tax case, we don’t yet know.

    • John A Townsend says:

      No, she is looking for a promotion to the 11th Circuit or, in her most extended imagination, the Supreme Court.

      My question though, is whether under the Supreme Court’s Trump immunity decision, it is could be shown beyond a reasonable doubt that she traded this dismissal for a promised promotion if elected to some other court, could that be treated as prosecutable bribery?

      • fatvegan000 says:

        No, because her promotion will come after she granted the dismissal favor, so according to SCOTUS it will be a “gratuity” not a bribe.

        • Magnet48 says:

          That’s why everything was timed out, for cover. The republican party is a criminal organization making all their actions legal.

    • Just Some Guy says:

      Nope*. It’s gonna be J.D. Vance, which is a hilariously bad choice, even for TFG.

      *Aileen’s on the SCOTUS short list. But don’t worry — she’s “quirky!”

      • CovariantTensor says:

        My take is that after the assassination attempt, with J.D. Vance laying the blame squarely on Biden and the Democrats for saying Trump should be defeated at all costs, and Trump trying to appear more moderate–at least for now–J.D. Vance is out.

        • Matt___B says:

          Maybe now that JD has been officially picked, the definition of “out”
          will now mean “out front”, as in JD can become the mouthpiece for all the accusatory BS and Trump will hang back. No, that’s impossible. Maybe for a few days. Or less.

        • Eschscholzia says:

          Based on your username, may I understand that your take was a “hallucination”? [Yes I know there are other more interesting applications for covariant tensors, but that’s the one all the kool kids do.]

          So it’s clear that this is meant in fun and not a personal attack, I give you back my hallucination: the JD pick is setting up a successor to keep MAGA & the grift going and owning the Republican party for years to come, now that the offspring seem less willing or able to follow him into the Whitehouse.

      • Dark Phoenix says:

        Yep, Trump picked JD Vance, who is unparalleled in the art of kissing ass and sucking up.

      • Tracy Lynn says:

        Is this right? I think she is eligible to be VP — she can’t be president, however.

        But of course, as everyone knows now, he picked a white guy with a beard to be his running mate.

  3. vigetnovus says:

    Why even bother refiling it with a US attorney now? Clearly the right thing to do is appeal to the 11th. Marcy, you even said this is such a laughable judgement.

      • vigetnovus says:

        I suppose they could, but at this point, either Trump wins or he doesn’t. If Biden wins and SCOTUS sits on the appeal, then go ahead and refile with a US Attorney. Might as well get something into the record now.

        • xyxyxyxy says:

          So we now have Supremes who are the dictatorship as anything the legislative and executive want will have to be negotiated with them, so they can eg hold up the budget till they agree to spending, etc?

    • Rugger_9 says:

      Don’t we also have the additional admissions and evidence of boxes and obstruction that were not part of the original case? IIRC, this case has been a trickle-truth fountain and not all of it has been charged yet.

    • WhispersRD says:

      No doubt he will. And he’ll likely win at the 11th Circuit Court.

      And we’ll have another chance to see SCOTUS in action as “the most partisan Court in US history!”

      Any hope the case has of restarting depends on a Biden win.

      At that point, I hope the Republicans would cut bait with Trump. He’d be a two-time loser and a criminal to boot. They’ve been bleeding moderates for years and there’s only so much lipstick you can put on a pig.

      • Yohei1972 says:

        I was sure the Republicans would cut bait after Trump lost them the White House, the House, and the Senate. I was even surer after January 6. Nothin’ doin’. At this point they’re fully committed to this path – the elected positions include lots of true MAGAs at the local, state, and national levels, and the voter base literally tells pollsters they’d rather lose elections with Trump than win them without him.

        That leaves aside the question of what “cut bait” even means – it seems to me that MAGA has become a movement that could exist without Trump.

  5. Rugger_9 says:

    JD Vance is the Veep pick. As bad as Convict-1 is politically, Vance is worse with fewer scruples. It remains to be seen if he’s as dissolute on a personal level

    • Dark Phoenix says:

      The only thing Vance is interested in is power. He showed that with his transformation from never-Trumper to Tucker Carlson’s favorite guest, simply so he could run for the Senate.

      • Rugger_9 says:

        My guess is that the campaign wants to tap Peter Thiel’s money.

        I look forward to the upcoming post, apologies for the OT trip.

        • earlofhuntingdon says:

          Sounds like a good guess. It’s also a statement that Trump and Vance will do anything in exchange for the money – and the power they and their patrons hope it brings.

        • fatvegan000 says:

          Thiel’s money for sure. I also heard (from a commentator on MSNBC) the Heritage Society is ecstatic because Vance was their dream team pick.

    • Ginevra diBenci says:

      TY, harpie. I found this especially helpful on the “file in DC” option, which is not nearly as clearcut as some here seem to think–at least as presented in this thread, which matches my previous (albeit inexact) understanding.

    • SteveBev says:

      I have read Greer’s analysis a few times.

      He refers to the “conduct element” of espionage act offences, but then refers to the conduct element as “retention”.

      However the conduct criminalised in 793e at issue is
      “retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it”.

      That is there are 2 conduct elements, both of which are continuing pieces of conduct. They are interrelated pieces of conduct, but the second piece is not subsumed within the first, because the second creates a series of obligations not covered by the first, and in doing so deprives the person in possession of the putative defence which would otherwise exist viz “I destroyed the document, and did not retain it”
      The second is the breach of an obligation to deliver, ie ensure that the person authorised to receive it does indeed receive immediately, at the moment the person in possession comes into unauthorised possession or whose authority to possess it has terminated.
      And the obligation to deliver to that person continues thereafter. The failure to effectuate delivery occurs where the person entitled to receive it is situated. Thus while the conduct relating to retention might begin when the person was in Florida, the conduct relating to failing to delver arises in DC.

  7. wetzel-rhymes-with says:

    Been off the Internet for months. Thought I’d check in here with you people because this is the only site on current events on the Internet I can read without puking. My Methodism is turning dark. How cruel Atlanta has become. This is a city that used to give shelter to its people. Now it’s all Fulton Industrial Blvd run by Hades. I’m not surprised to see this behavior from Cannon.

    I’ve been working to get some people housed. One I started thinking it was just pushing Georgia ID and SS Card then SS disability and Medicaid, a huge and heavy lift, a woman diagnosed with psychotic illness who actually has a neurological disorder (Frelogi’s syndrome). Then a Dekalb Sportsbar where I played chess, I came to understand the Dekalb DA’s office had turned into a trap. A bunch of squatter friends of mine in an abandoned building next door to the club were going to be raided at 4AM, and the ones who weren’t informants were going to be doomed with huge charges. We worked to get them Squatter protection, and the police and informants in the building and club pulled the rightful postings down, subverting the hearing GA Law calls for. Eventually, their own violation of GA Law led a half dozen squad cars to come and scrape my flyers down and let the people out simply telling them to leave. That was an acceptable compromise, so the AJC and they avoided the wrath of the Buckhead family who build the complex (wonderful people) who did not want the epilogue of their family story to be this tragedy. The DA’s office were going to doom those folks with trauma and charges to turn them into “cooperators” to bring down the rich gang-bangers and rappers who go to the club.

    Anyway, I am a Mayor of Little Five Points, emeritus, I suppose, and I’m 4-7 lifetime on getting people off the streets. I’m about to get to 6-7 so that’s okay. It’s a consequential position like a Jackass Jean Valjean. My models were the first Jimbo and a guy named Don who is a Methodist pastor. Anyway, you would not believe how much I’m worn out. I’m about to retire after putting myself in the hospital with stress cardiomyopathy and severe potassium deficiency last week, walking miles out in the heat. I thought I’d check in here, and, well, basically, exhort people not to put much stake in the election or this case. I think the situation is much worse than this or that election. Remember that Jesus harrowed Hell. Try to have faith and love in your heart and none of this will have power over you. Checking out again for a while. Don’t need the stress of reading this stuff. I’m alright. Much love.

  8. RipNoLonger says:

    Thanks for all that you do, and much love to you for when you come back.

    I agree with your

    I think the situation is much worse than this or that election.

  9. Dark Phoenix says:

    Apparently, Judge Cannon decided to borrow everyone’s favorite trick from Bush v. Gore; she specifically states that this ruling is ONLY applicable to Jack Smith and no other special counsel.

  10. tje.esq@23 says:

    Since I was one of the only people to put my prediction of Cannon’s taking this exact action on these exact grounds in writing, I have no problem predicting this as well:
    Using Cannon’s vehicle here, SCOTUS will overturn Morrison v. Olson, but the justices will have to overrule the 11th Circuit when Jack Smith wins this on (his intermediate) appeal. I felt certain of this when I read Thomas’ concurrence in Trump’s immunity case. The only big question is whether SCOTUS will take the case in an interlocutory appeal or instead insist Trump first go to trial and be convicted, and then have an final-judgment appealable issue (like Hunter Biden and every other criminal defendant had/has to do). Maybe a not-so-big question at all, perhaps?

    Cannon will be one of hundreds of Federal District Judges who will “bravely” rule against precedent and be lauded in Federalist history books as the courageous souls who carried out a full frontal assault on, among other things, all Warren Court criminal-defendant-rights-advances — Miranda, Gideon v. Wainwright, Mapp v. Ohio, etc…… GET READY ALL. With Trump’s assassination attempt yesterday basically cementing his win of this fall’s election — which I see as the inevitable result of a mentally ill 20-year-old’s extremely poor choices on Saturday — I see days ahead even DARKER than already being planned. https://www.project2025.org

    This judicial branch activism will be matched with the executive branch Project 2025 activism, which we have some prior experience with.
    Recall Trump-appointed Health and Human Services ‘senior adviser’ Paul Alexander demanded a CDC’s MMWR vital health report on kids & covid be altered because the “CDC tried to report as if once kids get together, there will be spread and this will impact school reopening . . . Very misleading by CDC. . .Their aim is clear . . .This is designed to hurt this Presidnet [sic].” ? https://www.cnn.com/2020/09/12/politics/cdc-trump-science-reports/index.html

    Or recall the mysterious ‘retraction’ of the first report on the Smithfield pork plant COVID outbreak reissued the next day with no demands for safety procedures that were in the first-issued report the day before? https://www.keloland.com/news/healthbeat/coronavirus/cdc-report-on-smithfield-covid-19-outbreak-in-sioux-falls-was-redone-with-watered-down-safety-recommendations/

    Now, think beyond public health, to other governmental agencies…. When tornado weather warnings, contaminating environmental spills, and plane crash reports are written or issued by political appointees of the executive branch, who were hired for their demonstrated loyalty to Trump and not their specialized industry expertise, I see trouble ahead. https://www.bbc.com/news/world-europe-12940060

    And its not as if more deprivation-of-rights will move folks to the ballot box and disfavor the rights-takers. After all, Ron DeSantis managed to arrest for “unlawful voting” thousands of people recently given voter registration cards approved by the Florida Secretary of state, AND HE GOT RE-ELECTED in a landslide. https://www.npr.org/2022/12/21/1144265521/florida-voter-fraud-cases-prosecution-update

    • tje.esq@23 says:

      And if you thought that Trump had authoritarian tendencies, wait until you read what his VP nominee, J.D. Vance, has said he will do once given power: https://www.vanityfair.com/news/2022/04/inside-the-new-right-where-peter-thiel-is-placing-his-biggest-bets

      Vance described two possibilities that many on the New Right imagine—that our system will either fall apart naturally, or that a great leader will assume semi-dictatorial powers.

      “So there’s this guy Curtis Yarvin, who has written about some of these things,” Vance said. . . “So one [option] is to basically accept that this entire thing is going to fall in on itself,” Vance went on. “And so the task of conservatives right now is to preserve as much as can be preserved,” waiting for the “inevitable collapse” of the current order.

      He said he thought this was pessimistic.

      “I tend to think that we should seize the institutions of the left,” he said. “And turn them against the left. We need like a de-Baathification program, a de-woke-ification program.”

      “I think Trump is going to run again in 2024,” he said. “I think that what Trump should do, if I was giving him one piece of advice: Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people.”

      “And when the courts stop you,” he went on, “stand before the country, and say—” he quoted Andrew Jackson, giving a challenge to the entire constitutional order—“the chief justice has made his ruling. Now let him enforce it.”

      This is a description, essentially, of a coup.

      To be clear about the term “de-Baathification program,” it was the policy implemented by Donald Rumsfeld in Iraq to “effectively cleanse[] Iraqi society of Ba’athist influence” to allegedly facilitate “the creation of a democratic Iraqi government.[5][8] Critics argue that the policy was not only undemocratic, but also a significant factor in the deteriorating security situation throughout Iraq.[12][7][13][14][15][16]” https://en.wikipedia.org/wiki/De-Baathification

      In other words, Vance wants to “effectively cleanse” American society, culture, and institutions of any influence from left-leaning or “woke” voices to eliminate “the left’s” influence on U.S. political culture, interpretation of “rights” or “liberties,” public schooling and education, public life, etc.

    • blackbird says:

      Respectfully, I might be a naive young voter but

      > Trump’s assassination attempt yesterday basically cementing his win of this fall’s election

      I’m not sure a deeper introspection of stochastic political violence and its origins is helping Trump. It’s even more evident that “Biden is Old” no longer being “The Story” means that Biden’s regular TV appearances and the emergence of Vance, moneyed cosplayer of the unwashed masses, has realigned at least some reporting back to reality. I agree with everything else in Project 2025 being a coin flip away from becoming administrative policy is abysmal, but Cannon had limited jurisdiction to determine outcomes, and I won’t predetermine anything more from that.

  11. dopefish says:

    When does Judge Chutkan get the mandate back in the Jan 6 case against Trump? I haven’t heard about any action in that case since the Corrupt Supreme Court issued their immunity ruling.

Comments are closed.