Jack Smith's Brief Lacks
A Sense of Urgency
By Joel D. Joseph, author of Black Mondays:
Worst Decisions of the Supreme Court
Special Prosecutor Jack Smith appealed Judge Aileen Cannon's absurd dismissal of all charges against Donald Trump for illegally retaining classified documents at his Mar-a-Lago estate. Smith's appellate brief filed in the Eleventh Circuit slammed Judge Cannon's dismissal but failed to express any sense of urgency. Further, the brief did not request that Judge Cannon be removed from the case. This is extraordinary since the Eleventh Circuit has already twice reversed Judge Cannon's earlier rulings concerning Donald Trump.
The dismissal erroneously claims that Jack Smith was not appointed according to the constitution because he was not confirmed by the Senate. Judge Cannon's ruling was clearly erroneous because the Appointments Clause of the Constitution provides that officers of the United States shall be appointed by the President with the advice and consent of the Senate. U.S. Const. art. II, 2, cl. 2. But the same clause provides that Congress "may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Congress has passed legislation expressly providing that the Attorney General "may appoint officials . . . to detect and prosecute crimes against the United States." Id. 533(1). Congress passed this legislation after it passed the Ethics in Government Act in 1978 in the wake of the Watergate scandal.
No other court has ever ruled that special counsels need to be confirmed by the Senate.
Judge Cannon, appointed to the federal bench by Donald Trump, obviously is biased in this case. Nearly every law professor and legal expert who has read her opinion believes that it is clearly erroneous and will be overturned.
In an earlier case, a three-judge panel of the Eleventh US Circuit Court of Appeals reversed U.S. District Judge Aileen Cannon's order appointing a so-called "special master" to sort through thousands of documents found at Trump's home to determine what should be off limits to investigators. The court said that the judge should not have intervened in the first place. "The law is clear," Judge William Pryor wrote for the unanimous panel. "We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts' involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations."
But time is of the essence. There is still time for a trial before the election. The classified documents case is a simple case that can be tried in two weeks. Jack Smith should have filed a motion for summary reversal short-circuiting months of delay inherent in an ordinary appeal. But he failed to do this. He also failed to ask the court for an expedited hearing. And most blatantly, failed to seek the removal of Judge Cannon from the case.
Smith's brief is an excellent brief if you are a law clerk with no interest in getting justice done quickly. It explains meticulously why Judge Cannon has no authority to dismiss the case.
"Justice delayed is justice denied" is attributed to William Gladstone in 1868, but the concept is reflected in the old Testament and the Magna Carta. Martin Luther King used the expression in his 1963 letter from Birmingham jail.
"The most interesting thing about Jack Smith's brief to the 11th Circuit is perhaps what's not in it: a request for Judge Aileen Cannon's removal from the case," said Lisa Rubin, a legal analyst with MSNBC.
Special Prosecutor Smith can still ask the court to expedite the appeal. He should do this immediately.
