I Think This Judge Cannon Might Not Be on the Level

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:45 Thomas: And welcome to Opening Arguments. This is episode 1052. I'm your host Thomas Smith and That over there is real-life attorney Matt Cameron. Why does it always feel like it's been way too long, Matt? I just always miss you. How are you doing?

0:00:57 Matt: You too. It's been extra long. I'm still in the afterglow of visiting a functioning democracy. Had a great time in Scotland. Appreciate the time.

0:01:06 Thomas: Jeez, is it a little weird over there, hasn't it? But it still functions. It's a functioning...

0:01:09 Matt: They're not perfect, but I landed

0:01:11 Thomas: You're right. It is a functioning democracy.

0:01:12 Matt: Within hours of a pretty good liberal victory, not a lefty victory, but certainly picked up a lot of labor. I will say too, I wanted to share that when I was in Edinburgh, I stopped through and I just was walking around the corner and here's a giant building that says the Supreme courts. They have a plural on there for some reason. And I thought, how about I just stop into the Scottish Supreme Court?

0:01:16 Thomas: Yeah It's like maths. Maths.

0:01:32 Matt: Yeah, pretty much. Decided to stop into the Scottish Supreme Courts, and I could not find the entrance because it was not clearly marked because nobody visits the Supreme Court because nobody cares exactly. So, I walked in and I talked to security and I said, look, I'm an American lawyer. I just want to look around. I'm just curious how you guys do things. And they were so confused. They just kind of all looked at each other.

0:01:41 Thomas: They Nobody cares. Yeah.

0:01:51 Thomas: She's like, you're the first person that has ever expressed any interest in being here.

0:01:53 Matt: Yep. Never cared, exactly. And they're like, okay. I mean, there's nothing really going on right now. This is like one o 'clock on a Thursday. I'm like, Okay.

0:02:02 Thomas: Okay, but do they wear kilt -related judge's robes is what I want to know.

0:02:07 Matt: Get to find out. I'd love to know. I know. But so I went in and it's a nice little building, but it's so tiny, and weren't open, nothing was open.

0:02:14 Thomas: Bunch of Scottish justices being... Oh, shit. So, in re... He's pretending to... No one's ever checked. We're not doing anything in here. Here, this is

0:02:24 Matt: Closing Solitaire quickly. Yeah. No, I walked around and it's very nice inside. It's worth taking a look. I mean, it's just the building itself. It has this nice hall full of statues and stuff. But the security followed me in after a couple of minutes and she's like, sir, I'm just going to have to ask you to leave.

0:02:39 Matt: Because they just didn't know what to do. Yeah, they had no mechanism for just a visitor wandering around. And that really says something. This was obviously just days after the immunity decision. So it's nice to see a court that nobody cares that much about because it's just working. I assume they're not doing anything too nuts, but who knows?

0:02:40 Thomas: Just too suspicious. Yeah, that's so funny. Yeah,

0:02:59 Matt: Didn't see anything.

0:02:59 Thomas: But Did you have a nice trip? Ah, good stuff. Did you make it to any, uh, the distilleries that you were talking about? Oh,

0:03:00 Matt: Had a great trip. I just stayed on Islay for a couple days and walked around. Great trip. Just like 3 ,000 people live there. It was the off season, so you could just jump on the bus and go between the different distilleries. There's no tourist infrastructure whatsoever. So I some great scotch, had a good time, got some reading and writing done.

0:03:18 Thomas: Come on, Come on, we're Scotch fans. Name drop something. Give us something, something to work with. Oh, you went to both those? Oh, wow. Yeah.

0:03:21 Matt: I couldn't get to every one of them because I didn't have a car, but just really enjoyed it. Beautiful place. I'm drawing up a short list of countries I'm going to be seeking asylum in, and it's top of the list someday.

0:03:37 Thomas: It's Yeah, God. Hey, everyone, aren't you so glad that we have an in with an immigration attorney when we need to plan our immigration out of the country? We'll see, you had a nice time. You went to a functioning country and you saw a court nobody, nobody cares about. And we're going to talk about the opposite of all of those things in that I think the big news that I am really, really wanting to hear a full breakdown of Judge Cannon's idiotic decision to just dismiss the kid, just dismiss the old, the whole thing, whole documents case gone because of something that Clarence Thomas scribbled on a cocktail napkin as part part of the last stupid ruling. I can't believe it. I mean, I can and I can. It's just I

0:04:08 Matt: I'd propose had proposed that this move be known forever after as the cannonball. I think that's what she did. Just jumping in the pool and just all the water's gone. Yeah.

0:04:28 Thomas: Know. Look shock, but not surprised or the other way around. I think that's important. Like, obviously, no one's going to sit around here and pretend no one is listening. This show is going to be like, wow, I don't know. I don't know. It doesn't matter. It just doesn't. It can't be like the shamelessness of the. But like, we also should still maintain our level of shock because we, we need to not normalize this. And so in that spirit, like I am very shocked. How unexpected was this for you though? Was this something that you thought was going to happen or what do you think?

0:04:30 Matt: Sure. Yeah.

0:04:56 Matt: I mean, we all know that she was trying to broom the thing as soon as she could, but I have to say I was worried because we talked about this motion. We mentioned it a few weeks ago. And I remember I noted that she Was bringing in Amici, like friends of the court to come and argue in front of the court in a district court proceeding, not like the Supreme Court, but just a little dinky district court preceding. I've never heard of that before. I went looking. It doesn't seem like this has really ever happened before. It's one thing to file a brief, and a lot of district courts don't even allow briefs. But she she actually allowed people to come in and argue for two days about this motion. There's a red flag there. Makes you think maybe something might be going on.

0:05:09 Thomas: Yeah. Cool. Cool, cool. Yeah.

0:05:31 Matt: She cares that much.

0:05:32 Thomas: I, I just felt like she had already delayed. My feeling was it's like she already had won, you know, like they already had delayed enough that it wasn't happening before the election that I figured why bother with this kind of thing. So So it genuinely a bit of a surprise to me. Anyway, But want I to hear all the details and we're going to do so after this break. And then also, it may or may not be on the episode or it may Be like something we just keep for the patrons only. But I just have to yell about the mother effing New York Times, the daily coverage of this because I just it's just worthless and I can't help it.

I want I want To get your take on it. Um, we'll see, we'll say kind of depending on timing, that's either going to be the end of the episode or maybe for a patrons only either way after this break. Will have the full, uh Matt breakdown of this stupid thing, uh after this. So patreon .com slash law if you'd like to avoid all that and maybe hear a little extra at the end.

0:05:41 Matt: True.

0:06:17 Matt: Let's do it.

0:06:25 Thomas: Right, Matt. Matt. So, um, sure you have a plan of where you want to begin. Guess I want to ask one question that I don't think will be too disruptive to To your plan, this is based on a Clarence Thomas concurrence. Inspired by loosely, uh, yeah, loosely based on, uh real events.

0:06:35 Matt: Is certainly inspired by, sure. Adapted, yeah. Yeah.

0:06:42 Thomas: Can you remind me? In the audience, what was... was that because it was just Clarence Thomas, so is that part of the decision, or is that just like, "I agree with these idiots, plus I want to say one more thing"? So I'm, because I'm trying to get a sense of, is this something the whole court really signed on to, one way or the other, or is it literally just one guy writing a little extra and then Judge Cannon being like, Like, "Oh, that's gospel right there."

0:07:08 Matt: Well, it was last week. Is it actually last week that we talked about the immunity decision? Has it really only been a week?

0:07:14 Thomas: I don't know, man.

0:07:15 Matt: I think it was.

0:07:15 Thomas: I don' t know.

0:07:16 Matt: I mean, I guess I did have a week off, but yeah, no, I think it was this last Friday that we discussed the big blockbuster July 1st Supreme Court immunity decision in which Clarence Thomas just sort of looked up at the ceiling and had some thoughts just out into the air. And at the time I noted in that episode that it was pretty weird that he was getting into an issue the parties had not raised. They had not briefed. They had no argument.

0:07:31 Thomas: Yes, that's weird.

0:07:38 Matt: Nobody brought this up. Empty room. So he's just went on for nine pages about how I have another matter I'd like to talk about. Basically, I agree that the president should be a king. That's fine. But what I really want to talk About is that Jack Smith is illegally appointed. And we all thought that was pretty weird. But now looking back, this is very much Clarence Thomas's Russia if you're listening moment where he stands up and is like... Because think about this for a second. Seriously, a Supreme Court justice can't just email Eileen Cannon, right? There'd be a paper trail for that.

0:08:09 Matt: You can't just tell her what to do.

0:08:09 Thomas: Well, yeah, but also, don' , you feel like Clarence Thomas just would, like, pick up the phone or something? You know, I just, boy,

0:08:16 Matt: If that ever got out, I guess then again, he probably had the same thought

0:08:20 Thomas: Matt, if that ever got out, there' d be some outrage, huh? That, oh boy, yeah.

0:08:20 Matt: Yeah. Even as I said that, Thomas.

0:08:24 Thomas: Yeah, that would be like flying of the insurrection flag and then lying about what it was for and also accepting a bunch of money and gifts from billionaires and a bunch of other stuff that, if that got out... No, I mean, I do, at the same time, I genuinely mean the question. Like, I don't know if that's a line that even those assholes would still draw. You know, they'd still be like, oh, that's all too far or not. I just don't no. Like at this point, maybe they I wouldn't be surprised if they just back channeled, you know, like in a way that was whatever, but, but point is they front channeled in the form of a dear whom it may concern letter, uh, concurrence.

0:08:24 Matt: Yeah.

0:08:54 Matt: Just stapled on there, just stapled onto the most important decision of the term, just like, let's throw in this little extra essay, a little bonus for you. So, not going to say that this was the basis of her decision because Because she had this hearing weeks ago, on the 21st and 24th. It was a two -day hearing. And she had the motion in front of her since February. So she's certainly been thinking about it. But Clarence Thomas published that concurrence a week after the hearing that she had. So he was clearly paying attention to it. And the arguments are being made. And then her decision came out a week later. So I certainly, and she cites him three times in this

0:09:02 Thomas: Yeah. Oh, right. Yeah, and so

0:09:33 Matt: Decision.

0:09:33 Thomas: Do you mind answering the question of what is the actual weight of his concurrence? Just technically speaking, I don't know what it, what that means, like is that part of the decision or not, or like, you know?

0:09:43 Matt: Oh, no, it's useless.

0:09:44 Thomas: It's useless. So, but it's not dicta, I guess, right? Or is it dicta?

0:09:44 Matt: It doesn't have any, illegally. To really. It's just kind of like one guy's opinion. And obviously, if anybody else agreed with it, they would have signed on to it. So it's really just Clarence Thomas on his own.

0:09:56 Thomas: Trying to remember that. Have the decision and then you have these concurrences. I know there was one decision, I think this term, I forget which one, where there was a bunch of different concurrences with different signings on. So you could have, okay, so you have the decision is the decision, and long as five justices sign on to, you that, that's a decision. And then anything additional, let's say four justices maybe agree on some additional thing, for example, that could be a concurrence, but it's not really, like, part of the decision because it didn't get a majority. Is that how it works?

0:10:07 Matt: Yeah.

0:10:28 Matt: Yeah, I mean, he might as well just staple on vacation photos or a cool lizard he saw or something. I mean it's just pretty much because it has no bearing on anything else.

0:10:32 Thomas: Check out my Winnebago, my motor coach, as they call it. Just making sure it's so citing to that in this decision, what of insane, not law, anything is that?

0:10:46 Matt: So really what he's doing is providing an imprimatur, sort of just like a stamp of approval on this argument that he knows is open and in front of a district court judge. And she's providing sort of the weight of his authority by saying, well, look, this guy agrees with me. You heard him. Her decision follows his logic pretty closely. And so we should break it down and see kind of what the two of them are saying. I will say his is written much better written, much, much easier to read than hers.

0:11:11 Thomas: Oof. Yeah.

0:11:12 Matt: And hers is literally 10 times longer than his, which is very annoying for me personally. So it's the same though. I mean, it really comes down to the same arguments, but I will say as well, this is an argument that has been floating around since at least 2018 with the Mueller appointment. So this is not new. And she certainly, well, also know, as we discussed in the Eileen Cannon episode, she was a member of the Federalist Society. She's one of those freaks who joined the Federal Society in law school, like the first year of law school all the way through until she was was appointed. She had to leave the Federalist Society to join the bench. So she's a hardcore, long-term Federalist society member who actually joined in law school. That tells me something, at least.

And this is a Federalist Academy argument. This is something that they've been pushing since 2018. Steve Calabresi, the co -founder of the Federal Society, wrote a Wall Street Journal editorial in which he explained almost exactly this logic about why Mueller was illegally appointed. So this has been floating around. It's not necessarily even a fringe argument as we're going to discuss. It's not a great argument. I don't agree with it. I think it's stupid. I thing most commentators at this point do. It is, I don t want to say it's legitimate, but it's within the bounds of the law.

0:11:25 Thomas: Right. Sure.

0:12:15 Matt: It s not completely made up.

0:12:15 Thomas: Sure, but it's not decided. That's what I just want to, and sorry to belabor it, but I wanted to get just a for sure answer on it. Isn't it weird to cite to just a concurrence that one guy signed onto? Is that not weird?

0:12:28 Matt: That's not In the same way, you can also cite to a dissent if you particularly like the Morrison v. Olson, which is a case we're gonna be talking about here. Scalia wrote a typical sort of a Scalia dissent, and they love citing to that because they want that to be the law. You cite to a dissent, you know what you're doing. Obviously, you're just citing to one guy's opinion, but you're saying, yeah, they

0:12:39 Thomas: Okay. But for a lower court to do that, I get that the Supreme Court does that. Okay. All right.

0:12:48 Matt: Could. Yeah, again, but your doing it knowing that you're not citing controlling authority. It's just kind of like, here's something interesting that someone agrees with me on. Yeah, I mean, you can cite to concurrence and you can say that this is in there, but it's certainly not the law." So let's get into what this actually is before we We get much more opinionated here. Let's play the game that we often like to play, where I just read some statutes and you tell me what you think they mean.

0:12:55 Thomas: Huh. All right.

0:13:11 Matt: Let's see if you're as smart as Judge Cannon.

0:13:12 Thomas: Well because we're all textualists now. So I assume that just reading the text ought to do it, right?

0:13:14 Matt: Yeah, that's right. Well, it actually does in this case, I would tell you. 28 USC 553. The Attorney General may appoint officials to detect and prosecute crimes against the United States.

0:13:30 Thomas: Okay? That's like the speed limit is, you I don't okay sounds like he can do that

0:13:35 Matt: Yeah. Yep. 28 U.S.C. 515, the attorney general and any other officer of the Department of Justice or any attorney specially appointed by the attorney general under law may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, etc., etc. basically, it says you can do anything that U. S. attorneys are authorized to conduct. So you're the same as U. S. attorney when you've been appointed this way. The Constitution of the United States, if you care, I guess, has an appointments clause, which is kind of central to this argument. And just to read that out a bit, the president shall nominate, and by and with the advice of the Senate, shall appoint ambassadors, other public ministers or consuls, judges of the Supreme Court, and all other, your favorite, officers of the United States, remember that argument that comes up here, whose appointments are not herein otherwise provided for, which shall be established by law. But Congress

0:13:53 Thomas: Yeah. Oh, God, does it really okay oh

0:14:25 Matt: May by law vest the appointments of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of department. So, yeah, how about that? It seems like maybe this is saying that the heads of department can appoint inferior officers. Given that the special counsel by statute can be fired for good cause, that would suggest to me that he is not a principal officer. He is actually someone who is an inferior officer because he has a supervisor who can fire him for cause. I think we've solved it. I think we can go home. That's pretty much lawfully

0:14:35 Thomas: Wow well, bold proof case right all right, thank you, everybody, ladies and gentlemen, thanks for listening to the show. How, where do you, they even, that's why I actually am very excited. I'm very excited, Matt, to hear you explain this because I don't even, I haven't gotten into it. I, I can't wait to hear the bullshit we're going to get. I can't just, can't wait.

0:14:59 Matt: Appointed. Oh, not done. There's one more.

0:15:15 Thomas: Oh, you're not even done setting up the reasons why this is. Okay. Yep. Sorry.

0:15:19 Matt: I'm going to make the best case that there is for her in a minute, but I just want to make sure that I read one other thing. So Richard Nixon, as we know, of course, a famous decision we've mentioned several times in the last couple of months from 1974, 50th anniversary of this month, in which a unanimous Supreme Court, these are very different times, under under Chief justice Berger announced a per curiam Berger.

0:15:21 Thomas: Oh yeah.

0:15:35 Thomas: I'm sorry. Berger. It's gotta be Berger, right? Isn't it Warren Berger? Are you going to tell me that you're the one person who has known the secret pronunciation of Warren Berge this whole time?

0:15:47 Matt: Yeah. Unfortunately, he was not on the court at the same time as Justice Frankfurter, but that would have been too good. So, yes. So the Burger Court releases this decision, smacking the president down and saying that he is subject to subpoena, that he has to turn over the tapes, right? We know all this. But one thing that Richard Nixon wasn't doing was challenging the special prosecutor who was coming after him.

So in passing, and again, there's an open question as to whether or not this is dictum, which is singular of dicta, or whether it is actually foundational to the entire case. Case, and I'm going to argue, and I think it's pretty clear, that this is just something that the Supreme Court thought was true 50 years ago, and I don't see why they wouldn't think it's true now. Well, maybe they might not we'll see, But the authority of Article 2, Section 2, the section I just read to you, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States government. It has also vested in him the power to appoint subordinate officers, you might say inferior officers, to assist him in the discharge of his duties. Acting pursuant to these statutes, and it lists off all the statutes, including the couple that I just read to you.

The Attorney General has delegated the authority to represent the United States in these particular matters to a special prosecutor with unique authority and tenure. The Supreme Court of the United Saints did not have any issues with this. They thought this was completely normal under the statutes I just reading. So let me explain to you sort of the main arguments here. You kind of have to look at it is working down from the constitutional argument. Now, Clarence Thomas is pretty clear that he thinks that there's no actual statutory authority, despite the statutes I just read to you. Thinks that because,

0:16:25 Thomas: Yeah. Okay,

0:17:14 Matt: I don't know exactly why, but more or less because these are not really officers, I guess. They're officials. The open question here that we have to look at is whether these are principal officers or whether they are inferior officers. And if they are principal offices, then yes, absolutely. They should have been appointed by the president with the advice and consent of the Senate. We know that. Obviously, if it was the Attorney General or the head of DHS or something like that. Sure, no question. But

0:17:36 Thomas: So that part important is like, you can't have someone else appoint an attorney general. Like you couldn't have like someone else in justice be like, ah, I nominate this guy.

0:17:41 Matt: Yeah, that'd be weird. I like him better. And that's fine. But There an argument at the time in 2018 that Mueller was actually a principal officer, and it's a shockingly stupid argument. I went back and read Steve Calabrese's, not only his original argument about this, but then his the responses response to his stupid argument. And I posted on Twitter with a bunch of question marks all over one of these screenshots because I can't make any sense of what he's trying to say. I just can't. And if somebody could explain it to me, I would be very seriously concerned for your mental health. Is essentially saying that Mueller's office is so large and has such reach that it somehow how it makes him a principal officer, even

0:17:49 Thomas: Sure. Fair enough.

0:18:24 Matt: Though he's doing the thing the U.S. attorney does.

0:18:24 Thomas: He's, you see he's principal because he's really important is the thing.

0:18:27 Matt: Yes, it's just too big. He's, he's during international criminal litigation basically, but he's something that any other U. S attorney would do. And that's the point of this is you're appointing somebody to be equivalent to U .s attorney, but you're pointing them from outside the government sometimes, sometimes they're U. s attorneys, but saying that this is a special prosecution that needs to be developed for some reason, because there's a conflict of interest with the general, whatever. There's, there's some other reason we need to do this. Now, of Of course, states and local authorities do this all the time, right? In fact, they did it in the Alec Baldwin prosecution, which we'll talk about sometime, where there's a conflict of interest and you have to go find some private attorney, appoint them as a special prosecutor. Just, it's very common.

0:19:02 Matt: Nobody's really ever challenged this. And I will say that there has never been a successful challenge to the special prosecutor process. Trump tried it at Mueller, and that was shot down and confirmed by the DC Circuit. And, you know, there is nothing that canon can go on that actually supports her at all, right? So she just has to do the canon thing and write a bunch of words. That's kind of her deal. She just loves to put words on paper, and it sure is fun to release 93 pages to make people read. Is just tortuous to read, I will tell you. Does only cite Webster's Dictionary once to her credit, so good job there.

0:19:02 Thomas: Yeah, please tell me she defines special. Everybody, let's make bets on the word she defined just for fun.

0:19:40 Matt: Don't even know what word she... Let me Ctrl -F Webster in here and let's see... Oh, you know what? Never mind, scratch that. She did not cite Websters Dictionaries. I thought I saw it. She cited a case called Webster, but that's different. Oh, no, no. Hold on. Black's Law, of course. She cites Black's...

0:19:47 Thomas: Oh, please. Principal, special. Let's see. What else? Or some random unrelated thing that's the Okay. Dictionary. Though. Okay. Sure.

0:20:02 Matt: Oxford English Dictionery.

0:20:02 Thomas: Ah. There we go. Hey.

0:20:04 Matt: Okay, yes. Okay. There we go. Oh no, No, I'm sorry. Let me take somebody that didn't come up in the original search. So she cites both Oxford Dictionary, Webster's Dictionery, and Black's Law Dictionry in different places.

0:20:13 Thomas: Hey, she's doing her due diligence. Give her a break, Matt. She's trying really hard on this law thing. She looked at three different dictionaries.

0:20:19 Matt: Nope. Make that four. Merriam -Webster's is also in here too. So, yep.

0:20:21 Thomas: But. Bulletproof. You've Heard belt, belt and suspenders. Yeah.

0:20:26 Matt: Get the big three right there. Merriam -Websters, Oxford, and Webster.

0:20:27 Thomas: Okay. Now.

0:20:29 Matt: Good work.

0:20:29 Thomas: Drum roll. What was the word that she was, was trying to define? A Point? Oh, wow, that's a dark horse. Uh, a point? Anybody have a point, you're the winner? I didn't- that is so dumb. That I- wow, I'm sorry. A point? Holy...

0:20:32 Matt: Point. Point.

0:20:43 Matt: A separate place. No, I'm sorry. She cites Webster's multiple times, multiple dictionaries and of course. You always get to go back to black law dictionary. Oh, Random House also makes an appearance for official.

0:20:51 Thomas: Crap.

0:20:52 Matt: Wow. All the dictionaries. I mean, just in case you don't believe, you think that Webster is just part of the deep state or something, right? You got to make sure you diversify. Yeah, officer is something else she wants to make she gets dictionary definitions of, which is pretty central to of the case here. So let me, again, sorry, let me get back on track.

0:20:52 Thomas: Oh. God. Okay. No. That is on track, Mad- I, she needed To define point. I can't wait to figure out why. I can only find out why she needed to look That word up. They Show is brought to you by Rocket Money. Money is a personal finance app that finds and cancels your unwanted subscriptions, monitors your spending, and helps lower your bills so that you can grow your savings. Hey, here's the thing about me, I, uh, sign up for subscriptions all the time and forget about them all the time, and that's not good. And Rocket Money practically might as well be made for me. They must have studied me and been like, "Gosh, that guy needs an app for," because, wow.

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0:21:09 Matt: Is. So the constitutional argument that the appointment is invalid. And the only way that that works is either if Jack Smith is actually a principal officer, which nobody seriously seems to think he is. And it seems like maybe even Trump kind of conceded that he's not. But if he's an inferior officer, then he has to have been properly appointed by a head of department department or by the president alone. Act of Congress, Congress has to allow the president or head of department to do it.

0:22:54 Thomas: So not like they have like advice and consent You're saying they have to have passed something that gives them the...

0:22:59 Matt: So Congress has to create sort of an office that can be filled by the president. And I guess that's sort of the key way to think about this. Coins Thomas said this in his concurrence. I agree with this part. Thomas said that the appointments clause allows the president to fill a position, but not to create a completely new job. And that is true.

0:23:00 Thomas: Okay. Sure.

0:23:15 Matt: There has to be a job that exists by legislation. Now, I completely I completely agree. And there is a kernel here, just to get into this, of something that I can agree with in this entire argument, because I really don't like the idea of the federal government being able to create a special prosecutor that is completely out of control and that was not provided for in any kind of statute, right? There's somebody that can just conduct political prosecutions, the kind of thing that people keep saying that Trump is subject to right now. That were to actually happen, you could see that happening with somebody like that, who's completely unaccountable. And in fact, we used to have independent counsel, and we all remember Kenneth Starr, if we're a certain age. Kenneth Stahr, of course, had a very wide-ranging Watergate investigation that started with some real estate deals and ended up with Monica Lewinsky. And even, I think, Republicans at that point were kind of like, okay, that was a little much.

0:23:31 Thomas: Yeah. Yeah.

0:24:01 Matt: That office just kind of went on and on. And if you appoint somebody like that and give them that kind of money, they're going to find something. Thing.

0:24:05 Thomas: That was whitewater, right?

0:24:07 Matt: And so the independent council statute was allowed to expire in 1999. It was actually the Ethics and Government Act. I think that's very funny that it was allowed to expire because that was the end of ethics and government, apparently. You can mark it right there. We're done with that one. We tried it, but no. So after that, then this is kind of, I guess I should explain this in a little bit of detail. So there has has always been this idea for most of modern history that we need special counsel, special prosecutors. In fact, I think Canada is very concerned about the different things we call them, but outside counsel, outside the government that might need to do some jobs that the government shouldn't be doing. And President Grant actually appointed the very first one in 1875, and that was to investigate his own chief of staff. And it was actually a friend of his. And that's kind of funny, actually. His chief of staff was running a whiskey ring, the

0:24:18 Thomas: Screw that, everybody. Hopefully nobody notices.

0:24:56 Thomas: Nice.

0:24:56 Matt: St. Louis whiskey ring and helping people dodge taxes. It was actually a major national distillery scandal. And so he had to appoint a special prosecutor because obviously it was his own chief of stuff and nobody had a problem with that.

0:25:07 Thomas: So, try to eliminate bias or to try to have a... Yeah, sure. Makes sense.

0:25:10 Matt: And make sure that somebody connected to the president is being prosecuted by someone outside of all that and has a special protection that he can't be fired directly by the president. Makes sense. There has been sort of different kinds of versions of special independent councils throughout history. Of course, Watergate, as we said, 50 years ago, nobody really had any serious question about the fact that the same statutes that I was just reading you, that Canada is taking issue with here, that Cornelius Thomas takes issues with, statutes allowed for that special council, and everybody seemed to think that was okay.

0:25:36 Thomas: And famously, Nixon had to fire attorneys general, right, until that person would fire the special counsel. Console, so that seemed fine. I mean, this has been part of our history that everybody learns about in school for, for the last, what, it 50 years, 40, 50 years and nobody was ever like, "Well, wait a minute, though, Nixon should have been able to just directly fire," you know, like, come on.

0:25:41 Matt: Right. Right?

0:25:53 Matt: Years since Watergate. Yeah. Right, right. Right. Again, just to make that distinction between special counsel and independent counsel, just because those things get thrown around, they're not the same thing. And the independent counsel was its own office, its own thing that was established by statute, completely different mechanism. In that case, in Morrison v. Olson in 1988, the Supreme Court found that the independent counsel is an inferior officer. So I think it's pretty hard to say the special counsel isn't when you've got that finding. Well, you would think it would be hard, and it is hard because Eileen Cannon has to spend 93 pages doing it.

0:26:01 Thomas: Okay, Yeah,

0:26:30 Matt: I'm telling

0:26:29 Thomas: She's like it wasn't easy, man, I had to look at four different kinds of dictionaries. My Amazon bills are just Chief

0:26:35 Matt: You, this woman is going out. Whatever happens to her, and she's very young, who knows what will be going on the rest of her career. Obviously, she'll be the Attorney General or on the Supreme Court if Trump wins. But no matter what, she's going to go down as a legend. This is a legendary thing to do, to stand up to all history precedent and common sense and toss out a case against a former president. The only case against the former president I think that was almost completely bulletproof, I think, I she's going to be remembered and ridiculed, I hope, by law school professors for at least a century from now. I mean this is, let's hope.

0:26:43 Thomas: Justice of the Supreme Court. Yeah.

0:26:59 Thomas: Yeah, or her picture will be in every building once the new Fuhrer or whatever, but hopefully the thing you said, you know.

0:27:09 Matt: That's true. Yeah. Now that I'm thinking about future history books, Rishi is lauded as a hero. I don't want to think too much about that. Last 25 years, since the independent counsel statute expired, we've kind of returned to this idea of special counsel. And it has just been understood that the statutes I just read you allows the Attorney General, and let me read 28 U.S.C. 553 one more time, and I hope everybody can follow me here, the attorney general may appoint officials to detect and prosecute crimes against the United States.

0:27:41 Thomas: Pretty easy. Now And that you explain it, I think the independent council expiring is almost, correct me if I'm wrong, that feels kind of irrelevant because I would have thought just kind of from absorbing a little bit about this, oh, maybe that independent council thing, maybe that was unconstitutional because they had too much power, it's like, nope, that wasn't that, it wasn't constitutional, they just let it lapse because they didn't want it anymore and so I'm not even sure what direct relevance that has other than of course history, I'm not saying shouldn't bring it up, but like, it's not really part of the case, is it, of

0:28:00 Matt: Yeah. Yeah, yeah. I just want to distinguish it. And it's also relevant just because in Morrison v. Olson, it's kind of a parallel thing, right? They already found it was an inferior officer, but I just wanted to mention it because I think a lot of people of our age and older will remember Ken Starr pretty well and

0:28:19 Thomas: Course yeah I just wanted double to double check, because I don't know how her insane reasoning is going to be, I did, I just want to make sure that that it, it wasn't part of her reasoning or something. It's just kind of, okay, gotcha.

0:28:28 Matt: No, not really.

0:28:29 Thomas: Broadly speaking, to make sure all the non-lawyers are following along here, there is maybe in your mind, Matt, and it makes sense to me too, there could be an argument if what was happening was somehow the Attorney General was appointing a special prosecutor who had godlike powers that other attorneys didn't have within the department and could could do things that other attorneys within the department couldn't do and was not answerable to really anyone. Yeah.

0:28:56 Matt: Right.

0:28:56 Thomas: Okay. I like that. That wouldn't be good.

0:28:59 Matt: Could be very bad, especially in a future Trump administration or something like it.

0:29:01 Thomas: Yeah, Yeah, no kidding. Now, is that what's happening here?

0:29:07 Matt: Very happy to tell you that is not what's happening. I also should mention that in Nixon, I do not believe that Richard Nixon, in fact, I am sure he was not, was challenging. You would think that of all people, Richard Nixon would be like, special counsel, no way, you cannot do that. They were not challenging that. That was not the basis of Nixon v. U.S. And I just think the fact that we didn't really see this argument until Mueller in 2018, when he was appointed to do something that the Federalist Society didn't like, I think that says a lot about the fact of when this thing came out.

So just to be very clear about sort of the logical legal track of what we're talking about, we're taking about the second half of the Appointments Clause in which has Congress by law vested the appointment of inferior officers properly, either in the president alone or the heads of department, and of course, the attorney general being the head of a department. And it's pretty obvious to me that Congress created a statute that allows the attorney Attorney General, to create special appointments for special purposes at different times.

But the fallback here, of course, if you want to go the way that Eileen Cannon and Clarence Thomas want to do on this, is to say that this, in fact, is not a proper statutory authority,

0:30:12 Matt: And there is no statutory authority whatsoever for the special counsel. And the way they do that kind of messy, but essentially they say that these are not really officials, specials, and that every time that there is a new special counsel, that Congress needs to pass a new law to do it.

0:30:12 Thomas: Oh, like on an individual basis.

0:30:28 Matt: Yeah, need to create a new office. And so that sounds really bad. I don't think that would work. She this thing that judges often say, where she's like, well, Congress knows how to do this, because in 1925, they did it for the Teapot Dome scandal, right? So they should have done it after that. I think that might be the last time she cites to you that they did it. And you can see the political issues with trying to make Congress pass something to create a special counsel when they're almost certainly going to be investigating the opposing party that might be running Congress or somebody associated with that party.

0:30:29 Thomas: That doesn't sound right.

0:30:54 Matt: That's the whole point of special counsel is that we want to overcome these political issues and find a way to make sure that justice is done or

0:30:38 Thomas: Yep. Yep. Yeah that Well, and this is is the right-wing Supreme Court's game now because they know Congress can't and won't do anything so every single thing, well, Congress wanted to, they could have passed a thing that, whatever, is pointless and redundant. And they shouldn't need to pass, yeah.

0:31:06 Matt: And of course, they just found very recently that that even when Congress does vest power in federal agencies, the courts should get to fully review what they do. People were trying to make some kind of argument that somehow the overturning of Chevron enabled her to do this, and it really didn't because she's not an appellate judge reviewing an agency decision.

0:31:29 Thomas: Yeah.

0:31:29 Matt: She's reviewing an urgency regulation, and she's saying she thinks it's too vague or whatever. But her decision is going to be reviewed now in light of the overturning of Chevron. So that might be helpful, actually. I don't think it really is going be much of a thing either way on that.

0:31:30 Thomas: Yeah.

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0:34:49 Matt: Of things I want to call out from her decision. She's kind of echoing Clarence Thomas, who says, whether the special counsel's office was, quote, established by law, end quote, is not a trifling technicality. Again, I agree with that. It is very important that if you're going to create a prosecutor, that that prosecutor should be grounded in the law. I want to read a couple of things from Kana's decision just to show you how silly some of this is. Says, the second mistaken premise is special counsel Smith is just another in a long line of quote unquote special attorneys of similar ilk. In fact, very few historic special attorneys resemble special counsel, Smith. It's true. They didn't all have beards. For starters, The title special counsel is a fairly recent vintage. Special attorney -like figures bore many titles throughout the decades. Special attorneys, special assistants, special prosecutors, independent counsels, and most recently, special counsels. In the court's view, this is not an insignificant semantic detail. Detail.

0:35:21 Thomas: I was Okay.

0:35:40 Thomas: Now this Thomas or was this Canon what Matt, what, what does that supposed to mean? I, okay, yeah.

0:35:41 Matt: This is a canon. Just giving you a taste of her logic and the way that she writes, because I think it's a completely insignificant semantic detail. You're talking about outside counsel that overcomes conflict of interest. That's the purpose of it. That is why you do it. And yes, there is a legal difference between independent counsel and special counsel, but that's about it.

0:35:57 Thomas: Well, but in the fact, fact that it's called special counsel is a, because sometimes it's called other stuff, I, I mean,

0:36:09 Matt: Because I don't want to sit here and read the 93-page decision, I don't even want to do it for a special episode because it would hurt everybody. I just, it's painful. I already had to do it. I don't want to inflict this on everybody. I want to give you just sort of another example of the way that Eileen Cannon writes and thinks. Read you before the passage from Nixon v. U.S. where the Supreme Court assumes without comment that the special counsel's office was properly authorized by the statutes that enable it. So that is her biggest problem, probably, in this case, is that the Supreme Court of the United States has said without question that this is fine. So what do you think she does with that?

0:36:40 Thomas: That was what the point I was trying to make earlier with the, like, citing to essentially dicta or a concurrence when you're overturning, we're going to get, I didn't think a lower court could do that, I get that when the Supreme Court does whatever the F it wants now, and it cites, you know, what was that, I can't remember that case where it cited a dissent, you know, from way back when, that might have been actually, it might have been the Colorado case.

0:36:45 Matt: Exactly.

0:37:03 Thomas: Remember that they kept citing like some random dissent as though that mattered from like forever ago, I get that they have the power to do whatever they want, you know why, because they are not an inferior justice, they're in charge of our whole lives apparently, but when you're Eileen Cannon, I didn't think you got to just decide, hey, um, I'm gonna uh patch up some problems with the old Constitution here. I'm going to just on my own, despite the fact that the Supreme Court explicitly has not said this, I'm gonna go ahead and just do it on my own.

0:37:02 Matt: I think it was, huh? That's what you're thinking of, yeah? Well, she can. I she has a lower court. She can say, you you know, it turns out that she can say pretty much anything. I'm trying to think of an example.

0:37:37 Thomas: Okay, I know she can, but isn't that not normal?

0:37:39 Matt: Yeah. Let me defend this for a second. It is normal. And as somebody who wants to see laws law has changed, it is the only way to go, right? So if you are going in and you're challenging, for example, the constitutionality of something like the Defensive Marriage Act, or you're challenging a gun regulation or something, going to have to argue to a lower court that this entire law is illegal, and the lower court is going to Have to find this entire law as illegal, and then you're gonna have to appeal and take it up from there. So

0:37:43 Thomas: Okay. Okay.

0:38:03 Thomas: The way that normally goes is they disagree with you and then you appeal up to the Supreme Court and they're the ones who matter, right?

0:38:10 Matt: Sometimes they agree with through in the government appeals. So,

0:38:11 Thomas: Okay, OK, I guess that's fair, guess the point you're making, and I actually agree with this because I really want the circuit courts to do more of this because the Supreme Court has lost its mind, is if this were in the name of something that made any sense at all and were good, then all right, fair enough.

0:38:26 Matt: Because you got to start somewhere. If

0:38:28 Thomas: Taken. I stand corrected, Matt. When it's a really dumb thing that's wrong.

0:38:32 Matt: Right. I mean, it is honestly, it's one of the great powers we have as lawyers, and I think we should do it more often when it's warranted, is we can walk into any dinky little district court and we can say, no, this whole law is wrong. My client shouldn't be bound with this law at all. Exactly.

0:38:37 Thomas: Yeah. This entire country is out of order. Yeah.

0:38:45 Matt: And I've done it before.

0:38:45 Thomas: No, you're right. You're totally right. I'm glad you said that because I actually, I've been wanting to make this point. I don't know if it's worth doing a whole show on at some point, but I do really wish that federal judges who are sane and who, you are on the left, I think, would just keep making the Supreme Court overrule them because the Supreme court also does no work anymore. I dunno if you know this, they don't do anything. The number of cases they're actually doing is so small. And so I actually think we could probably get away with a lot of it. And even if we didn't, it's making them do work. It's signaling like, hey, the law still exists. And it's not just whatever it is, because the Supreme Court said the president is a god among men. And so point taken. I appreciate that.

0:39:04 Matt: Yeah. Sure.

0:39:23 Matt: But at the same time, she is the best and only federal judge in Fort Pierce, Florida. She has jurisdiction over Fort Pierce Florida. And she's finding that the special counsel appointment system is completely illegal. And she's finding that, I guess, for the whole country, but the D.C. Circuit has already found exactly the opposite. So Judge Chutkan, for example, is bound by a D.C. Circuit law, and this has to be resolved by the Supreme Court. That's the only way, because this is going to go to the 11th Circuit, and the Supreme court is going review it. So at some point, there is going to have to be a resolution between these two opinions. And I have to think, well, we'll get to what I think, but I think you know what I thank. The fact is, though, that she Bush v. gored this thing. And she said, this is limited to only this case, which is kind of funny if you're saying that this entire system is stupid and bad and actually illegal and unconstitutional, but only here, only

0:39:37 Thomas: Cool. Oh, OK. Yeah, it is funny. Yeah.

0:40:12 Matt: With President Trump.

0:40:12 Thomas: Yeah. Special counsels are constitutional in in other cases, for some reason.

0:40:17 Matt: Hunter Biden, for example, or Joe Biden, that'd be fine.

0:40:18 Thomas: Oh yeah, there you go. Very convenient.

0:40:22 Matt: Constitutional all the way.

0:40:23 Thomas: She really say only this case? What in the world could be her logic for that?

0:40:27 Matt: She's only reviewing this case, and she doesn't have...

0:40:30 Thomas: Yeah, but that's implied, isn't it? I mean,

0:40:30 Matt: Yes, but it is a weird thing to say. Find the exact language, actually. Going to read it because it is kind of funny. Right up front at the beginning. Effect of this order is confined to this proceeding. There you go, that's in the first page.

0:40:42 Thomas: Man, we know. Look, I was wrong about the last thing, but like, is that normal? Yeah, we get, like, why would we think it's not? Like, that's the case you're looking at. Am I? She's presiding over this case, this is not, you know, right? I mean, she's not this, she's an appeals court, she's like, she was doing this case, it's like if the judge in a murder case was like, "All right, this, okay, this only applies to OJ Simpson, I'm gonna make a decision." It's like, yeah, that's what you're doing, we know that.

0:40:55 Matt: I guess, yeah, right, right.

0:41:12 Matt: Yeah, great. The rest of us are safe. Thank you. So think she just wanted to be sure it wasn't cited in Hunter Biden or other cases, right? And the fact is, this could be raised by anybody who's being prosecuted by a special counsel right now, because now one judge has found it. It's not binding on anybody else, but it's something that other courts can look at. And apparently, from what I understand in this decision, the way that she's writing it, her understanding is her major issue here is that Jack Smith was a private citizen when he was appointed. Now, he had been a US attorney before in a previous life, but he, of course, as we know, his last job was at the Hague prosecuting international crimes.

And so he was brought in as an attorney who did not work for the US government and appointed. And that is a little weird when you think about it, because typically these are done from inside the government, but there's no reason at all that I couldn't be appointed a a special counsel. Might be some reasons, but they can grab any attorney they want. And that's, again, as I said, very common in state and local prosecutions that they just have a private person do it. And she's reading all of this to say that you can't have somebody from outside the government do this,

0:41:14 Thomas: Okay, yeah.

0:41:24 Thomas: Well, Yeah,

0:42:09 Matt: Even though the attorney general by statute can pretty much designate, kind of deputize anybody as a US attorney if they want to.

0:42:14 Thomas: The important part, I thought, Matt, forgive, was that the person, once in that role, can't have like different special powers that someone else wouldn't have if they're an attorney, right? And not as though they, they have to have been an attorney in DOJ or something, right?

0:42:30 Matt: That is what she's saying is that when it says official, that it means that it has to have been somebody who's already in some official capacity. That's part of it. And that's part of the argument they've been making. The appointments clause is the central question here, as is the actual statutory basis for appointments. So they really are just looking at that. They're not as concerned about the broad powers. That was the argument they're making with Mueller, that he was a principal officer because he had all this power. But focus is on the appointment, or less. And she eventually gets to it and says that he's an inferior officer, but yeah.

0:42:52 Thomas: Okay, because they've ceded the principal officer thing. If she that, then yeah, we're looking at the other part of the argument. And I'm actually not as sure. That part of the argument I felt like I had a good handle on. Like, okay, yeah, if he were some sort of superior officer, that part I got. Now that she's apparently conceding, that's not the case. What is she left with again? Oh, because they had to do it for like, they had to name him like individually, or whatever, like make in

0:43:00 Matt: Right. Right, at the statute part.

0:43:15 Matt: There's no actual statutory basis that Congress did not by law vest the appointment.

0:43:23 Matt: That they just say that we need a special prosecutor to look at former President Trump, which of course, we know that this Congress would not do. That she has to go through, painstakingly go through. And I'm not going to subject you or the listeners to this, but just an absurd textual analysis to explain why when it says that the attorney general can appoint appoint attorneys to do this. It doesn't mean that an attorney general can appoint attorneys to do that. And then she takes on U.S. v. Nixon, where again, the U. S. Supreme Court said specifically this was fine, kind of in passing. Now, this is, I think, the funniest part of the entire decision. And it's the funniest in a dark kind of way of the entire thing. Because remember, Clarence Thomas wrote a concurrence, which as we just discussed at length, is not binding and is basically just as useful as his vacation photos. And he stapled that to the most important decision of the term.

And this was an issue that nobody had briefed or argued. And her main issue with the Nixon decision, in Which the Supreme Court mentions without getting into it too much, that it believes that special counsel was properly appointed by the statutes that she is taking issues with now. Says, well, that issue wasn't briefed to argued by the parties.

0:44:27 Matt: I just think that's very funny when she's citing... Yes. So I think it's funny when When she's citing to this Clarence Thomas concurrence as something that she thinks is really great, when he's raising an issue that was not briefed or argued by the parties whatsoever, it has nothing to do with the actual issue in front of the court. Then she's stating to Nixon and saying, well, that wasn't really the issue in the case. It wasn't briefed to argue before the parties, even though it is central to the case because it involves the actual prosecution of Richard Nixon.

0:44:28 Thomas: The Nixon one yeah yeah when, in reality, okay, let me make sure we all are following along. In reality, what happened is it wasn't briefed or argued because no one was arguing it. It was just like, yeah, this is obviously fundamental to what's happening here, and neither side, not the you know, the good guys or the Nixon, neither of them, them, disagrees with this thing. And so they're just like, well, yeah, obviously this. And she says, so she's saying now, well, yeah, but they only did that because it wasn't briefed or argued.

0:44:56 Matt: Exactly. Yeah. Right.

0:45:17 Matt: They were just kind of going along with it. And they just looked up and saw the sky was blue and nobody was asking questions. Yep.

0:45:20 Thomas: Cool, man. Yeah.

0:45:22 Matt: Yep. Pretty much. So that's dumb, obviously. And then she goes through six or seven pages to try to explain why that doesn't say what you think it says. And again, I'm not going to subject you to it, but this is what she has to do. And this again, we've already talked at length about this. We're certainly not the first people to notice this, but Eileen Cannon really, really does not want Donald Trump to be prosecuted. There's just no question that this is, again, if you just look look at this decision and read it through, and then go and look at, know, any of the other decisions where this issue has been raised. If you look at the law, if you look at Nixon, everything else, right? This is just, I I dunno what to say. I mean, we've said what we need to say about Judge Cannon. I think we don't need to go on about it. I think everybody understands at this point who she is and what she's about and why she's there.

0:45:23 Thomas: Oh, You'd think, you would think, but, um, the New York Times, the Daily doesn't, Matt. So maybe it's worth saying. I actually do. I would like you to emphasize this. Any lawyer, I just, don't let me put words in your mouth. I was, again, I was wrong the last time. Any lawyer who's not a complete Trumper or an idiot would see that this is a very unusual thing to have done. Why?

0:46:25 Matt: I believe so. I'm trying to be as objective as possible. Though, okay, let me just kind of of get on the other side of this, because this is going to be appealed. Jack Smith just appealed it now. Well, because it's going to being appealed, we have to talk about both sides for a second. I do think that as somebody who challenges the federal government all the time and is very, very suspicious of the federal government and generally of government authority, I do you think it's important to probe these things and just just double check to be sure that when the government is doing something that's outside of the things the government normally does, they're doing it with authority.

0:46:49 Thomas: Is This Outside of the things the core of government normally does, Matt.

0:46:58 Matt: So having somebody off the street appointed as U.S. attorney is a little unusual to open an office to do this sort of thing. But no, it's not at all. Special counsel, special prosecutors are completely normal. My point is that this is not an argument for Mars. This is an argument that's been around for a while. And the reason that this has kind of not, I'd say this is neutral news. I've seen a number of different takes about how good or bad this is.

0:47:20 Thomas: Obviously.

0:47:20 Matt: Obviously, it's good in the sense that finally, after all of this time, Jack Smith has something to appeal, which he didn't have before. As we've discussed every time we've talked about the Florida case, she is just playing cat and mouse with things that could be appealed and burying them in other things and just not giving them anything to hold on to. But the real question for all of us is not, can this be appealled? Because I think it's it's going going to be a return on appeal by the 11th.

0:47:43 Matt: Circuit. I can't see how they're going to buck years history and tradition and the case law.

0:47:43 Thomas: Cannot Wait to read that decision. I can't wait to read the actual appeal. That's going to be fun too. Yeah.

0:47:48 Matt: Should be good. Yeah, I'm sure the Jack Smith, and it's already, I mean, just reading the briefing as it has been so far has been pretty interesting. But the question is, how do we get this person off of this case? How

0:48:01 Thomas: I want to pose that to you. I think, think people have been very excited because you've told us she's writing stuff on the back of napkins. She's avoiding, somehow, really, she's being really tricksy. She has been, she is avoiding things that can be appealed probably for that very reason. It's crazy what's happening here. It is absolutely nuts. It's like someone hijacked a plane and then is just trying to continue to make flights like, like as though they're the pilot and the airlines are like, you don't work here. And she's still doing it somehow until she does something like this that gives people an opportunity. And so my first thought is, oh, great. Yay. Awesome. This means appeal. And then can we be rid of Judge Cannon in terms of this case? What do you think?

0:48:11 Matt: Yeah.

0:48:44 Matt: I mean, honestly, okay. So Jack Smith has to argue on appeal that not only was this wrong, but that it was so far outside the bounds of what a regular judge would do, in combination with everything else that she has done on this case to date, including the entire episode that we've already done, and multiple times that we talked about this, that she is showing so much bias to the defendant and that she's already messed this up so many times. Because if she's reversed on this, this will be the third time. And I do think, maybe just basic baseball rules maybe should apply here. Could certainly argue baseball rules and say, this is the third times, let's maybe put somebody else on this. But at the same time, just being bad at your job is not necessarily enough.

0:49:24 Thomas: Why not?

0:49:25 Matt: Recusal, she is still a federally appointed judge, and the 11th Circuit can send this back with strict instructions and reprimands, but unless he can really show, and again, maybe with the pattern of conduct that she's established, maybe with all of the many, many, unnecessary delays, but all of these things are still within the bounds of things that a judge is allowed to do. They're nuts. They are outside of what she should be doing. They certainly show a judge who does not care about this thing progressing, know, you I'm just being realistic here. I just don't want people to think this is going to be the end of Judge Cannon on this case, or generally. But, you Know, could

0:49:47 Thomas: Yeah. Yeah. Understood. Understood, especially with, you know, what happened over in Georgia. I feel like, you that was, it's a little sore subject between you and I, I get it. But no, now understanding the, the realism that we ought to have with that. But I'm a little concerned of one thing. When you say, and I hope I can make this connection. When you Say, these are all within the bounds of things that she's allowed to do. Know what I'm reminded of is a bit of the like, well, it's an official act thing. And It's like, yeah, I know she technically can do these things.

But if you're doing them in a very corrupt, obviously, a way that's favoring Trump in ways, like, if you're doing a bunch of stuff that makes no sense with a clear purpose, doesn't I get that she hasn't done anything outside the bounds of being a judge. But that's just it. I mean, when you take, just to put it simply, let's say you have an extremely guilty man and the judge does everything they can to make sure he's either gets off the hook or found not guilty. The judge can do that as though it were, you know, somebody who was not guilty, but the fact that they're doing it in that circumstance is the thing that's bad.

0:50:29 Matt: Yeah.

0:51:08 Matt: Yeah Yeah, it absolutely is. And I would argue that it's arbitrary and capricious, that this is completely personal at this point, that there seems to be a thing that she wants to happen and that she's making happen. And, I think that there is enough of a paper trail on her docket for Jack Smith to do that, and I hope he does. Obviously, if he loses on that point, then he's being sent back after she loses the appeal and the case is reinstated. Has to go back and be in front of a judge that he just said is completely biased and unable to do the job. I don't think it matters. Yeah, that's true.

0:51:14 Thomas: Yeah.

0:51:30 Thomas: But that doesn't matter. I No, I hear you. I think I really don't know. Don't think anybody probably knows like how the court's going to look at that argument. But so just to make sure we have everything here, it sounds like you're quite confident in the appeal. Now, are you worried about the Supreme Court messing that up or the fact that only Clarence Thomas signed on to the stupid concurrence? Does that maybe give you hope? Hope.

0:51:33 Matt: That's true." Yeah, a little hope. But again, we are talking about a Supreme Court made up of a majority of Federalist Society members, and this is a Federalist society argument, and sure that they're going to give it a good hearing. I dunno. Again, at this point, I feel so naive for saying this at all, but at this I'd have to hope that the precedent and history and tradition and everything else they like to say... I mean, she even gets into a little originalism herself in this, but I would hope And that the Supreme Court sees through this and sends it back. I don't know anymore. Mean, I don't know. So the other question, of course, is how much would this logic, if adopted, affect other special counsel prosecutions, including ones that are currently open? She seems to be saying that if it's somebody like John Weiss who was appointed in the Hunter Biden investigation or John Durham who was appointed to review the Russia investigation, right? They were both sitting US attorneys at the time. So I think that she's saying that that's fine.

I would expect Hunter Biden would still try to use this logic because why not? It's there for him now. Think he actually did use something like this originally in his other case. But as I said, right now, Judge Chutkan is not going to change her mind about this. And she is bound by her own circuits logic. So I don't think the DC case is going anywhere on this ground. It'll be interesting to see if this continues.

The only other thing that Jack Smith could do right now is to refile the case in DC, which was an argument at the time that potentially this entire thing could have been done in DC.

0:51:58 Thomas: Yeah. Yeah, Yeah, now.

0:53:13 Matt: But it is a little weaker in DC because you're charge really is about holding out of the documents, and he held onto the documents in Florida. He did sort of steal the documents and send them away while he was in DC, but I don't know. I'd have to look closer at that. I would usually

0:53:28 Thomas: What? Oh, darn, okay. Yeah, I am interested in that question. I mean, it know what determines that. I mean, if there's any... yeah, one hand it feels like if you got a result you don't want in one jurisdiction, then moving it to another jurisdiction seems like that shouldn't be totally cool, right? I mean, that... or is that not?

0:53:47 Matt: Not like that as a defense attorney, sure. But if you have the right to bring it to multiple jurisdictions and you're dealing with a judge who's out of her mind and you have just as much evidence and ability to bring somewhere else and give it a try, but don't know. If I'm familiar enough, I'd really have to sit down and analyze this case to see how much it might survive in DC. But my general feeling is, my understanding is that they did not necessarily want to have to bring it in Florida, but they felt like that was the best place to bring it at the time because that's where the documents were,

0:53:53 Thomas: Okay. Okay.

0:54:10 Thomas: Well then, okay. I won't pry I do have a lot of questions, but I don't want to ask something that wasn't prepped today. So, all does that leave us? Is there anything else you wanted to make sure to tell us about this?

0:54:16 Matt: Yeah, I probably can't answer. I mean, obviously I could go another couple of hours just taking it through this decision and sort of pointing out all the silly things that I see in here, but you the idea. I don't really think we need to do that.

0:54:32 Thomas: In the end, I did want to make sure I could at least summarize the idiot argument. It wasn't the inferior officer, whatever, it had to do with... what, the appointments clause, or it had to do... so it was that he wasn't a U.S. attorney at the time, which means what, what?

0:54:50 Matt: Things. First, that the appointments clause, inferior officer thing, that that applies. He is an inferior officer. Because of that, you have to look at the statutory basis. And her finding is that there is no real statutory basis for special counsel to be appointed in this way. That's what it comes down to. And that part of that is because he was an outside person.

0:55:05 Thomas: Why does that matter? Yeah.

0:55:07 Matt: He's an official, I guess. He's coming from civilian life, he's not actually an official already.

0:55:11 Thomas: Text you read to me was very, very clear, it seemed to me. What, what part of that is she relying on when she's trying to say like, oh no, actually this isn't okay? Like, what, it comes to him not being an officer already or whatever, not being official already, that's what's... I'm not knowing. Okay.

0:55:25 Matt: The section that I think is the most clear, where it says the attorney general can appoint officials to detect into prosecuting crimes against the Unites States. Defendants argue that officials is most naturally read as non -officer employees. Special counsel Smith advances a broader interpretation, arguing that officials is a generic term that covers both officers officers and employees. And again, he's being appointed as a special U.S. attorney, so he is an official in this case.

0:55:48 Thomas: Okay, so that is the stupid argument. It's not... okay, so it's like, hey, you're appointing officials. Now I would think that's like appointing ambassadors. That would be like, hey, you can appoint ambassadors, and then you appoint someone and you're like, well, no, you can't appoint someone who wasn't an ambassador. They have to already be an ambassador to appoint an ambassador. That what she's saying? Because I feel like once you appoint him, that makes him the official. Isn't that like the plain, normal reading? And she's like, no, no. That is really dumb.

0:56:12 Matt: And basically, right? The Federal Society argument. That is essentially what it comes down to. And reading officials as officers and employee would also be contrary to Congress's typical legislative practice. So again, just going through everything, you expect here with just trying to go full textualist, bending over as far as you can to try to just twist yourself in many different directions to say that the law does not say what it says. That's what it comes down to. That is really the easiest summary for me.

0:56:39 Thomas: Boy, that is sure as dumb. Right. Well, I can't wait to play a little Daily for you. We'll do that for patrons over on patreon.com/law. Everybody else. Thanks so much for listening and we'll see you on the old Monday deep dive.

0:56:52 Matt: It is. All right.

0:56:53 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:57:12 Matt: Looking at the wrong Nixon VUS. That could be the problem. That's the 1993 one. There's a very famous other Nixon Vus where there's a judge who's being impeached and I was like, why does this have have to do with Richard Nixon. Okay. All right.