Columns, Constitutional Law, Courts

“This is How Republics Collapse”: Another Adverse Decision Sends the Press and Pundits into a Hair-Pulling Meltdown

Below is my column in the New York Post on the opinion of Judge Aileen Cannon. Once again, Democracy is “under attack” because a judge ruled against the prosecution in a Trump case. Indeed, law professors and legal experts are demanding the removal of Cannon for having the temerity to adopt an opposing view of the underlying constitutional claim.

Here is the column:

“This is how republics collapse.” Those ominous words captured the hand-wringing, hair-pulling reaction to the dismissal of the Florida case against Donald Trump by Judge Aileen Cannon.

It was not just that she reached a conclusion long supported by some conservative lawyers and a Supreme Court justice.

To rule in favor of Trump in such a dismissal is, once again, the end of Democracy as we know it.

The 93-page order methodically goes through the governing cases and statutes for the appointment of prosecutors. There has long been a debate over how an attorney general like Merrick Garland can circumvent the constitutional process for the appointment of a U.S. Attorney and unilaterally elevate a citizen to wield even greater power.

With the expiration of the Independent Counsel Act in 1999, attorneys general have long relied upon their inherent authority to appoint “inferior officers” to special counsel investigations. The issue has never been conclusively ruled upon by the Supreme Court, even though lower courts have rejected this challenge.

The Trump ruling is certainly an outlier and the odds favor prosecutor Jack Smith on appeal. Many point to a challenge in 2019 in the D.C. Circuit to the appointment of Robert Mueller. The court found that “binding precedent establishes that Congress has ‘by law’ vested authority in the Attorney General to appoint the Special Counsel as an inferior officer.”

That is the view of many lawyers and judges. However, Judge Cannon disagreed and found a lack of clear authority for both the appointment and the appropriations used for Smith.

Nevertheless, legal experts were incredulous and irate. Jed Shugerman, a Boston University Law professor, is quoted as expressing shock that Judge Cannon is essentially saying, “I’m not bound by the DC Circuit, and I think they misinterpret this.”

He added that it showed an “astonishing level of dismissiveness.”

However, in point of fact, Judge Cannon is not bound by the D.C. Circuit. As a federal judge in Florida, she is bound by the 11th Circuit and, of course, the Supreme Court. She is allowed to reach a different conclusion on a matter of law.

Laurence Tribe, a law professor at Harvard University, declared that “Judge Cannon just did the unthinkable,” He added, “This finally gives Jack Smith an opportunity to seek her removal from the case. I think the case for doing so is very strong.” (Tribe previously declared that he was certain “without any doubt, beyond a reasonable doubt, beyond any doubt” that Trump could be charged with the attempted murder of former Vice President Michael Pence).

It does not matter to these critics that other lawyers and judges agree with Judge Cannon.

Justice Clarence Thomas recently expressed the same view in the Trump immunity decision in his concurrence. He did not view this as a settled question and wrote “if this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the special counsel’s appointment before proceeding.”

Yet these experts believe that a judge without a direct controlling case on the question should be removed for reaching the same conclusion as a member of the Supreme Court and at least two former U.S. Attorneys General.

Of course, these experts would be aghast at any suggestion that D.C. District Court Judge Tanya Chutkan should be removed after being reversed by the Supreme Court in the recent immunity opinion.

Such experts are not raising questions of bias over Chutkin’s rulings in favor of Smith or the similar pattern of Manhattan Judge Juan Merchan.

Yet Cannon is viewed as not simply wrong, but partisan in ruling for Trump.

How do republics collapse?

When judges are pressured or removed for ruling against favored parties.

When the system is undermined by leading political leaders who go to the steps of the Supreme Court to threaten justices that they “will pay the price” for ruling against one side.

When law professors call the courts the “enemy” and push to cut off air conditioning to coerce them to resign.

Alexander Hamilton once said that the Republic is preserved “through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

That does not mean that the trial courts are always right. That is why we have appellate courts. However, conflicting decisions are the norm in cases that make it to the Supreme Court. Indeed, the justices often wait for such divisions to occur before they finally resolve long-standing questions.

These demands for the removal of Judge Cannon are simply extensions of the same group think culture of the “defenders of Democracy.”This Republic will not “collapse” if Judge Cannon is right or if she is wrong. It is safe as long as judges are able to rule according to their understanding of the law, regardless of the demands of the perpetually and emphatically enraged.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).

219 thoughts on ““This is How Republics Collapse”: Another Adverse Decision Sends the Press and Pundits into a Hair-Pulling Meltdown”

  1. Judge Cannon’s ruling was 93 pages and performed A THOROUGH legal analysis of all instances where the unconstitutional appointment of a special counsel was made. This case is definitely headed to the Supreme Court because (1) the special counsel will feel obligated to protect his reputation, and (2) this case will affect the Washington, DC case because the Trump team will file to dismiss the case for the same reason. Will Jack Smith be humiliated YET AGAIN by the United States Supreme Court?

    1. Yet it is wrong. SCOTUS has rules that the special counsel law is constitutional. The exception being Thomas.

      2. That ruling has no application here because there is no special counsel law, which is the whole point of her ruling. In the article above Turley notes that it expired in 1999. Did you read the article?

        1. No, there is “no special counsel” law because special counsels are appointed by AG’s. US vs. Nixon set the precedent and subsequent courts have ruled the AG DOES have the authority to appoint Special counsels.

          Weiss appointed SC by Garland to investigate Hunter Biden. Turley demanded for months for Garland to appoint a SC to investigate Hunter Biden. He never once questioned the authority of Garland to appoint special counsels. Not even when Smith was appointed.

          If Cannon’s ruling is upheld, which it won’t, it would mean Hunter Biden’s case would be dismissed as well.

            1. But Weiss was NOT appointed Sepcial counsel by the senate OR the president. The Senate only confirmed him as US attorney.

              Cannon ruled that the AG does NOT have the authority to appoint a special counsel, that only the president or Congress can do so. Confirming Weiss as US attorney is NOT appointing him as Special counsel.

      3. Wally: SCOTUS has rules that the special counsel law is constitutional.

        You have no idea what the **** you are talking about. There is no such law, and there is certainly no SCOTUS ruling upholding it!

      4. Still voting for Hunter?
        NBC has reported that Hunter is now sitting in on meetings and phone calls with senior WH staff and advisors.

      5. Wally tried this post: Yet it is wrong. SCOTUS has rules that the special counsel law is constitutional.

        I know for certain that SCOTUS has specifically ruled that prosecutor Jack Smith is “a threat to our separation of powers”.

        What specific SCOTUS rulings are you making to justify that vague, seemingly insinuating claim. You have a lot of missing context and specifics with that claim.

      6. So the Turley McCarthy podcast alluded to Jack Smith perhaps could have gotten to trial had he no succumbed to Jack Smith’s overcharging syndrome. They further argued that would have been obstruction, end of story. They then argued that there would be made the immediate argument of the Hur treatment in prosecution of Biden. Regardless, Trump won and the case will perhaps be appealed and end up at the Supreme Court. Where a dime to a dollar they will agree with Cannon.

    2. It was 93 pages of nonsensical argument ignoring precedent. Even Turley believes Smith will prevail on appeal.

      Cannon has been rebuked by the 11th circuit before because she has made nonsensical rulings. This one is no different.

      1. Ignoring what precedent? A decision by the DC circuit is not a precedent in the 11th circuit. She owes it no more deference than she does to decisions by the Supreme Court of China.

        1. It was not just the DC court. It was also SCOTUS in U.S. vs Nixon and several other district courts. There’s plenty of precedent which Cannon chose to ignore. Turley already knows her ruling will be overturned by the 11th circuit. She is THAT wrong. Turley won’t openly say she is because he wants to avoid the backlash and criticism he would get from his most loyal readers. He can’t afford to be seen as agreeing with the majority of legal experts. He has to present himself as a “neutral” observer which he is not.

    3. @lightspeed276 RE:”Judge Cannon’s ruling was 93 pages …” I didn’t take much more reading down the page to wonder how many of the contributors had read the Messe Amicus. If not, it is highly recommended.

  2. Lawrence Tribe lost all credibility when he argued in a 2000 NY Times Option article that Florida should conduct a do-over vote. Now that’s jurisprudence! And to think that had Gore won, he would be sitting on the Supreme Court he now routinely vilifies. Cannon KNOWS that she will have at least one vote on the Supreme Court. Indeed, while we do not know whether her decision will ultimately be upheld or reversed, one thing is for certain. It is not an outlandish decision given that Thomas has given it her both the road map and a green light.

  3. The last paragraph of this article is the most important. “These demands for the removal of Judge Cannon are simply extensions of the same group think culture of the “defenders of Democracy. ”This Republic will not “collapse” if Judge Cannon is right or if she is wrong. It is safe as long as judges are able to rule according to their understanding of the law, regardless of the demands of the perpetually and emphatically enraged.”

    If the Dems and their supporters REALLY cared about Democracy and the state of our Union – they would have been irate that Congress didn’t allow for the passage of a bill that guaranteed that only citizens could vote. Now, that would be a real move forward. I shutter to think about the election process — hold on to your hats everyone and watch carefully what the Dems have up their sleeves — “to save Democracy’!

    1. “to save Democracy’! enables the ‘tyranny of the majority’ against which the creation of a Constitutional Republic was purposed. To guarantee the rights of the minority.

  4. If anyone is still wondering where the roots of divisiveness are in the US, count the meltdowns on the left and the answer should be clear.

    1. The assassin was a registered Republican. It would be irrational to blame the left.

      2. Sadly, it doesn’t matter what the shooter put on paper — it was his action — that he was angry enough to buy a gun and use it. It is that anger, that hate and the malice towards the intended victim that propelled him. The left is not off the hook. Their hate of Trump is not only exhausting, it has corrupted the system and will deny the citizens a fair election because of their biases. Whatever you think of Trump, watching the left protect Biden, his family and go after Trump is the real killer to our democracy. And proving it is the very cognitively impaired president that holds onto his job with every stumble and mumble. Truly, this is a spectacle of epic proportion!

      3. 1. Left wing trash activists urged Democrat voters to change their registration to Republican to vote for Nikki Haley in the Republican primary.

        https://www.npr.org/2024/01/17/1225253439/thousands-of-democratic-new-hampshire-voters-are-switching-party-affiliation

        2. It’s far more rational to believe that the ActBlue donor assassin registered as a Republican because he expected clowns like you would use that to shield Democrats from criticism and blame.

        Well done.

      4. Monetary donations are a more reliable indicator of ideology than party affiliation. He donated to left wing causes. The appeal to his party affiliation is disingenuous.

        1. OldManFromKS,
          That right there!
          As they say, follow the money!

      5. That is an atrociously dishonest argument. You know very well that how a person registers to vote has no relationship to how he votes, or how he identifies. Literally millions of Republicans are registered to vote as Democrats and vice versa, because that’s how it works. Registering with a party simply means that one wishes to vote in that party’s primaries, no more.

        His donation to Act Blue, regardless of its size, shows that he was a Democrat.

      6. It would be irrational to blame the left.

        With your “in-depth” analysis, I wouldn’t be surprised to discover you truly believed you were the sole descendant of a Nigerian prince.

        You know Adam Kinzinger and Liz Cheney are also registered Republicans, right?

        No, irrational would be to believe it’s a title and not actions that define a person.

    2. Agreed. And ya’ gotta love how it took The Ministry of Propaganda all of a few minutes after Trump was shot to start in on telling conservatives that THEY are the ones who need to tamp-down the violent rhetoric.
      Two of the Cardinal Rules of Nazi propaganda:
      1. Accuse your adversary of exactly what you are guilty of.
      2. Repeat the lie, repeat the lie, repeat the lie, repeat the lie, repeat the lie, repeat the lie…

      Peace!
      John Underwood, Tyler,TX

  5. Putting Ukrainians above ourselves is what Christian charity and sacrifice is all about. It is the prerogative of American voters to care about Ukraine if they want to. Telling us that we shouldn’t isn’t going to help Republicans win votes.

    1. How do you “care” about Ukrainians? Continue to feed them into the meat grinder? Over half a million men have lost their lives. They are kidnapping boys on the street to go fight in a war they were never going to win. Caring means ending this senseless war ASAP.

      2. The inhumane animals in the US Congress think arming Ukraine and having them fight a US-proxy war with Russia is a “bargain” because no US soldiers will get killed in the process? This is sick thinking. Zelensky should be charged with crimes against humanity for using his people as dispensible cannon fodder, knowing it can never defeat Russia. Russia is never going to allow itself to be conquered and would likely use nuclear weapons against the west if they thought there was a chance of that happening. Time to pull the plug on this money pit of a war and start holding leaders accountable.

        1. I don’t see Zelensky living a long and fruitful life, win or lose. I’m sure Ukranian’s hate him as do Russians for senselessly killing 700,000 people.

          1. Traveler tried this:
            I don’t see Zelensky living a long and fruitful life, win or lose. I’m sure Ukranian’s hate him as do Russians for senselessly killing 700,000 people.

            We’re supposed to believe Ukrainians hate Zelensky because they hoped and wanted him to surrender Ukraine to Putin instead of fight? Nah, I don’t think so.

            Last polling in Ukraine had 65% supporting him… which kind of kills angry claims Ukrainians hate him like this poster does.

            What surprises me is that Ukraine fought beside America from the very first day of the Afghan and Iraq wars right up to the last, even though they could have said “not our war” as Americans here say about supporting Ukraine.

            I’m doubly surprised that they didn’t pack up their troops and head home when Obama/Biden treacherously reneged on the promise America gave to Ukraine to come to their defense in exchange for them surrendering their nuclear deterrent. We did that twice.

            Obama/Biden promised Putin space to invade despite the USA/Ukraine agreement. Despite that invasion, Ukraine still kept troops fighting beside us in Afghanistan and Iraq.

            And after Biden/Harris allowed months of Putin’s massive military buildup and then invading again, Ukraine still fought beside our troops over in A’Stan. Despite the fact America had treacherously lied to them for a second time.

            1. I believe the whole war should have been avoided in the first place. I have watched a few Colonel Douglas McGregor podcasts on it, very enlightening and informative. Didn’t Zelensky implement martial law suspending Ukranian elections? I’ve read that Ukrainian men of fighting ages 16 -60 were fleeing the country to avoid being inducted into the army snd killed in a war they could never win. I would imagine the Ukranian people that were traditionally of Russian descent probably don’t care for Zelensky. I don’t care for senseless war and really am opposed of financing it when we are broke. Not “trying “ anything but I am confident that Putin would kill him at his first opportunity.

    2. Dear Anonymous,
      “Putting Ukrainians above ourselves…”
      Putting ‘all others’ above ourselves is Christian. True.
      Since I won’t presume to understand the motivation behind your comment, I’ll take it at face value.
      Yes, the founders saw fit to allow even stupid and deliberately ignorant people to cast a vote in this place we errantly call the “united” states, and yes, if voters are foolish enough to cast a vote in favor of pouring kerosene on a nuclear meltdown, they can certainly do that.
      At this point, I’ll note that none of the “American voters” have been given the opportunity to vote directly on any referendum on support for a war against Russia – which is exactly what military support for Ukraine is.
      However, I would suggest that, while the prerogative you mention does exist, a far more important and meaningful duty also exists. A thoughtful American voter has a duty to vote for what is good for Americans, not for what’s good for Ukrainians. And most especially not what’s good for the shareholders of Boing, General Dynamics, and Raytheon.
      If you are advocating for humanity, that is, humanitarian aid for the Ukrainian people, I am fully supportive. Considering the devastation our criminal regime has wrought upon the Ukrainian nation, I think the least we could do would be an outpouring of desperately needed aid. However, if you are advocating that the criminal government of this nation allocate more money – money we do not have – for weapons of war to be used in Ukraine, that Anonymous, would be the most unChristian act possible. Every single bit of military support our rotten government sends to Ukraine, no doubt causes Satan to dance with delight.
      Perhaps there are republicans and/or others who have promoted the notion that we should not “care about” the Ukrainian people. I have no knowledge of such being specifically stated by anyone.
      Peace!
      Sincerely,
      John Underwood
      Tyler, TX

    3. Charitable Christians are free to send as much of THEIR money to Ukraine as they want. Charitable Christians can even go to Ukraine and die in a foreign war if they want.

    4. “I believe that Russian representatives should be at the second summit,” Zelensky told a press conference in Kiev.
      If you cared about the people of the Ukraine, you would be calling for a immediate ceasefire and peace talks.

  6. Question – Smith will appeal to the 11th Circuit. Who argues against him? Is it Trump’s team or someone selected by Cannon?

    2. In any appeal it’s the party that prevailed in the lower court that opposes the appeal, not the court that made the ruling! Why would this be any different? Cannon is not a party and would have no standing to intervene in an appeal.

  7. Turley neglects to give us Judge Cannon’s rationale for her decision to toss the case. It has little to do with whether she agrees or disagrees with the DC Circuit or whether the SCOTUS will have to weigh in and resolve this. No, it’s a lot more simple than this. To find the answer, one must look closely at a footnote on page 82 of the 93-page Order: “Yet startlingly, the Special Counsel submitted nothing on the topic of the proper remedy for the Appointments Clause issue, despite challenging dismissal as a remedy in the Appropriations Clause context [ECF No. 374 pp. 22–23 (disputing dismissal and referencing alternative sources of funding); see ECF No. 671 (response to supplemental authority agreeing to supplemental briefing “on the immunity issue” and nothing more)].”

    What this is telling us is that Smith was so convinced that he was operating under the umbrella of the DC Circuit opinion and that there was no need to further brief the matters of the Appointments Clause and the Appropriations Clause, that he ignored the opportunities given by Cannon’s court to do so and in the absence of his arguments, those of the defendants had to prevail. In other words, if you don’t object to something when given a chance to do so, you forfeit your right to determine the outcome. Quite simple, really. Whether the 11th Cicuit will ever get to weigh in on this question is doubtful but it will come around again. In six months, Trump’s new AG will file an order to dismiss before the 11th Circuit and that will be the end of it for now. A new Congress in 2025 might attempot to fix this through legislation setting forth the rights, duties, conditions and tasks as well as appropriations for the AG to appoint special counsels when and as needed.

    1. You are reading too much into the footnote. It says that Smith did not make an argument about REMEDY. He made extensive arguments about the merits, which Cannon systematically reviewed and dismantled.

      1. JJC and Daniel,
        Interesting comments and discussion. Thank you both.

  8. These demands for the removal of Judge Cannon are simply extensions of the same group think culture of the “defenders of Democracy.

    Ditto for those who almost assassinated Justice Kavanaugh and President Trump (an Act Blue supporter).

    Given that Democrats, Leftist academics like Tribe, and MSM have driven the hateful rhetoric (and refuse to admit any culpability) targeting not only President Trump but all but three SCOTUS members, how soon before another Act Blue supporter attempts to assassinate Judge Cannon? This from a Federal Judge who is a female, immigrant, Latina, person of color.

    Had the would be assassins been members of Proud Boys, we would not have been hearing the end of it. Oh wait.

    I fear for Judge Cannon. Nothing has changed, nor will change, in the Democrats assassin-like rhetoric.

    1. Almost assassinated Lavanaugh? Your exaggeration is so extreme it’s a lie.

      1. It’s not an exaggeration. He got very close to Justice K’s house with numerous deadly weapons and an intent to kill. If you had been the intended victim you would be singing a different tune.

      2. Dear Wally,
        You are of course entitled to your opinion, but how close does one need to come to an assassins bullet to qualify as “almost”? Is there an official yardstick? Sounds like a matter of opinion, to me.
        So, everyone who doesn’t view everything through your lens is a liar?
        Perhaps your accusation is a bit “extreme”?

        John Underwood
        Tyler, TX

        1. Yank, to qualify as “almost assassinated” there needs at least to be a bullet, which in Kavanaugh’s case there wasn’t. There was certainly a plan to assassinate him, and perhaps one can even call it an attempt, but it didn’t come anywhere near succeeding, so one can’t say it almost happened. That’s like saying that Gretchen Whitmer was almost kidnapped.

      3. His sister help in talking him down from carrying out the act.
        That is a fact.

    2. Estovir: Agree: “Had the would be assassins been members of Proud Boys, we would not have been hearing the end of it.”
      –Had attempted-assassin Thomas Crooks been a registered Democrat, we WOULD have heard the end of it.

  9. Those criticising Cannon do not say why she is wrong, other than to say “precedent.” She methodically reviews the Constitution, all the relevant statutes, US v Nixon, the Circuit Court cases and history. She concludes that no other court has systematically examined this question. When she does so she concludes that the Smith appointment was unconstitutional. Her analysis is thorough and clear. There was room to come out the other way on some points but she explains why she didn’t. Perhaps she will be reversed, but there is no basis for disqualification.

    1. “ Those criticising Cannon do not say why she is wrong, other than to say “precedent.”

      Everyone is saying why she’s wrong. Citing precedent explains why. Once you read what preceding rulings say you will understand the explanation.

      US. Vs. Nixon is a SCOTUS decision that points to why AG’s do have authority to appoint Special Counsels. Cannon flat out ignored it because she was looking out for Trump instead of being a judge.

      1. US. Vs. Nixon is a SCOTUS decision that points to why AG’s do have authority to appoint Special Counsels

        No, it doesn’t.

      2. 1. Leon Jaworski was appointed by Nixon because of the demands of the Senate.

        2. Jaworski was investigating the current Chief Executive.

        3. Biden and Garland claim that Biden had nothing to do with this appointment.

        4. The Senate had nothing to do with Smith’s appointment.

        5. Donald Trump is a private citizen.

    2. Her clear and thorough analysis is wrong. She’s in way over her head. To steal a MAGA term, she’s a DEI hire.

      1. And where did you obtain your Juris Doctorate?
        John Underwood
        Tyler,TX

      2. @Wally

        And why is ‘DEI hire’ a ‘MAGA term’? You really need to get out of your house (bubble) a bit more. Are you one that also thinks anyone that goes to church is a ‘white nationalist’ even though the majority of the faith affiliated on earth are not caucasian? I would not be able to stand your myopic, mushroom headed little world, and yet: you would happily impose it on me, and I am not ‘MAGA’, and am secular.

        The *actual* diversity of the human species terrifies you; anything that is legitimately broad or all-inclusive (like our founding documents) shatters the walls of myopia, it is why the modern left insists on compartmentalizing and segregating, or if that doesn’t work, eliminating, and then controlling to ensure the ‘rats’ nibbling on their delusions do not get loose again. The modern left have been driven mad by their own anxiety and insecurity, and they project it onto the rest of us.

        Sorry, we (ALL non-dems) are stronger than that; not necessarily physically (though that is likely, too), but in our mental acuity and emotional fortitude.

  10. Can’t wait until Trump’s Attorney General walks out on the sidewalk, stops a random
    private lawyer, and appoints them as Special Counsel to prosecute a Dem politician and do it with powers above and beyond DOJ attorneys.

    That essentially what Democrats are arguing for.-

  11. Lawerence Tribe is a Bernie Sanders card carrying Radical Harvard Law Professor who views are always radical, if the sun is shinning he will argue its the Moon. The DEMS do listen and follow Lawerence Tribe such as Pelosi, Schummer, radical Raskin. They did not get the ruling they wanted, so like a spoiled child they cry and huff and puff Judge Cannon laid out her reasons with extensive supporting data. Now we go to the 11th circuit of appeal, my opinion will take their time, while Jacl Smith will be huffing and puffin begging them to move fast and agree with him. In the end between the radical Judge in DC opinions this all ends up back in the Supreme Court some time next year but in the end it will all go away, if Trump wins.

    2. Anonymous said: “Lawerence Tribe is a Bernie Sanders card carrying Radical Harvard Law Professor who views are always radical, if the sun is shinning he will argue its the Moon.

      Essentially correct. He did get one thing right, once, but it was apparently a real world example of the “stopped clock” phenomenon. After arguing for years that the 2nd A. was not about the right of an individual to keep and bear firearms, he did do some additional research and was forced to admit that it does guarantee such an individual right. However, immediately after, he returned to his ridiculous established persona and made a crapload of bogus arguments about how it no longer applied in modern times, and how that aspect of it should be regulated and/or overturned by Congress. Truly a massively delusional swamp critter.

  12. Sarcasm is counter-productive these days, please deliver the message straight.

  13. Upon reading the last line of the essay, “Perpetually and emphatically enraged” , a mental picture of Bernie Sanders popped into my head. Sorry!

  14. Turley forgets that if the 11th circuit agrees with the DC circuit the Supreme Court would have a hard time overturning precedent. There would have to be opposing ruling for the court to ‘clarify’ the issue. If the 11th agrees with the conclusion of the DC circuit Smith would be in a position to seek a different judge who would conduct a much more organized and proper trial. Not the constant dragging and stone-walling Cannon has been engaged in.

      1. No, it means that there is clear precedent for the AG to appoint Special Counsels. Cannon deliberately ignored that because she is biased in favor of Trump. She mentioned Justice Thomas lone opinion about Smith as her reasoning which IS flawed. Thomas gave her an ‘out’ of sorts that is not legally airtight, but she took it anyway because it’s clear to the majority of lawyers and former judges that Cannon’s handling of the case is biased towards Trump.

        SCOTUS set the precedent when Mueller’s appointment was challenged. SCOTUS has basically already ruled that AG’s can appoint special counsels. Only Justice Thomas disagreed.

      2. SCOTUS has ruled that the appointment of a special prosecutor is constitutionally sound.

    2. As the decision points out, Nixon is not good law on the issue because the issue of statutory authority for the SP was not seriously litigated or briefed. The (D)C Circuit in Mueller just rubber-stamped it naturally. Weak precedent.

      1. No, the decision does not point out that Nixon is not good law. Cannon did not mention Nixon as precedent. She relied on Justice Thomas lone concurrence which is NOT binding. He gave her an ‘out’ to help Trump. None of the justices signed on to justice Thomas lone opinion, meaning they did not agree.

        The 11th circuit has already admonished judge Cannon for making sloppy rulings. The majority of experts INCLUDING Turley expect the 11th circuit to overturn Cannon’s ruling because there is ample precedent showing AG’s do have authority to appoint Special Counsels. Turley spent months demanding Garland appoint David Weiss as Special counsel to investigate Hunter Biden. Notice Turley isn’t saying it was wrong for Garland to appoint Smith OR Weiss.

        2. Turley spent months demanding Garland appoint David Weiss as Special counsel to investigate Hunter Biden.

          David Weiss is a US Attorney. The whole point here is that Jack Smith is not.

  17. “ Indeed, law professors and legal experts are demanding the removal of Cannon for having the temerity to adopt an opposing view of the underlying constitutional claim.”

    It’s not merely “an opposing view”. It’s a seriously flawed view borne out of a clearly biased judge. Cannon was appointed by Trump and she has already been rebuked by the 11th circuit for ruling incorrectly in Trump’s favor. Every legal expert knows Cannon is deliberately slow walking the case and is clearly in favor of Trump.

    Turley never offers his opinion on why he thinks Cannon is or isn’t wrong. He steers clear from any claim that she’s wrong. Because she is. He offers a vague hint, almost glossing over it, “ The Trump ruling is certainly an outlier and the odds favor prosecutor Jack Smith on appeal. Many point to a challenge in 2019 in the D.C. Circuit to the appointment of Robert Mueller. The court found that “binding precedent establishes that Congress has ‘by law’ vested authority in the Attorney General to appoint the Special Counsel as an inferior officer.”

    That is the view of many lawyers and judges. ”

    This is the view of the majority of lawyers and judges. Cannon is the only one who ‘views’ it the way she does only because Justice Thomas gave her an ‘assist’.

    Judge Cannon has been incompetent from the very beginning and she has been terrible. If he decision is upheld, which Turley clearly thinks is unlikely, it would mean even Hunter Biden’s case should be dismissed, Hur’s investigation was invalid, even Mueller’s. Because none were legally appointed according to Cannon.

    2. What does it say about The System™ when a foreign born judge understands US Constitutional “advice and consent” better than those arguing against it?

      1. I thought the prosecutor in that case was an active US attorney, unlike Smith. If so, then I would think it should not

        1. No, Weiss is an appointed special counsel just like Smith is. It’s ironic since it was Turley who complained loudly about Garland the AG not appointing a SC to investigate Hunter Biden.

          Turley demanded for months that Garland appoint a SC. He never once mentioned that Garland was not legally allowed, according to Cannon, to appoint a SC. Now he thinks Cannon has an “opposing view”. He never offers HIS view about why or why not Cannon’s ruling is correct. Turley skips that part despite the fact that he demanded Garland appoint a SC to investigate Hunter Biden. Turley knows Cannon is wrong, but he won’t outright say it because it would undermine his “objective” narrative.

          1. As I remember Weis was appointed as a Federal Prosecutor in Delaware by Trump and was confirmed by the Senate. When Trump left office Weis was not replaced and was allowed to stay in place as a confirmed Federal Prosecutor in order to finish the job with Hunter’s case. Weis was confirmed by the Senate and Smith was not. Somewhat of a difference, I believe.

            1. That does not matter. The issue is about Garland doing the appointing not that Weiss was confirmed.

              Cannon is saying that a special counsel can only be appointed by the president or congress after being confirmed by the senate.

              That’s not true. Turley points this out in passing in his column. He’s NOT saying Cannon is correct. He’s avoiding saying she’s correct. He’s only saying judge Cannon has a “different point of view”.

              Furthermore Judge Cannon did not provide any examples of Special counsels being appointed by the president or congress. The DOJ thru the AG does that. There is clear precedent for the AG’s authority to appoint an SC without requiring the president first appoint and the senate confirming. The point of a special counsel is to ensure independence from being influenced by the president or congress.

          2. George is on a lyin’ like a proud Biden roll again today:
            No, Weiss is an appointed special counsel just like Smith is.

            That is a lie; they are not the same. Jack Smith was a civilian hiding in disgrace over in Europe to do to Biden’s biggest threat to reelection as he did to Obama’s biggest threat to reelection in 2012. Weiss is a Federal Prosecutor nominated by a president and approved by Congress.

            Jack Smith was and is only a civilian with a record of malfeasance and lying to the public and juries. Exactly the same as you and your record here.

      2. Nope. That SC is a sitting US Attorney who has already been approved by the Senate. Jack Smith has never been appointed by the Senate. That’s the point. It really is very simple.

        1. It doesn’t matter if he’s a sitting US attorney or not. Weiss was NOT appointed by the Senate. He was confirmed by the senate. The Senate did NOT appoint Weiss as Special counsel. Weiss was appointed Special counsel by Garland. Cannon ruled that AG’s cannot appoint Special Counsels. Only the president or congress.

          Trump’s argument was that Smith’s appointment was not constitutional because he was not appointed by the president or congress. The issue was about who was authorized to appoint him. Garland appointed Weiss and Smith. What Cannon ruled was that Garland did not have the authority to appoint ANY Special Counsel. If that is the case, Weiss, Hur, Smith, and even Mueller were all illegally appointed according to Cannon.

          The DC court and other courts all agree that is not the case. Now the 11th circuit will determine if Cannon was correct. Turley clearly knows Cannon is NOT correct and he pointed this out in passing when he said that Smith’s position will be favored by the 11th circuit.

          1. no she specifically referred to advice and consent of the senate. Weiss has that as a sitting US attorney and Smith does not. They don’t equate

            1. The senate did NOT appoint Weiss as Special counsel. All they did was confirm him as an US attorney. That is not the same as appointing him as SC.

              You don’t have to be a sitting US attorney to be a special counsel. The argument is about who can appoint a Special counsel, it’s not about confirmation by the senate.

              Weiss as appointed as special counsel by Garland, not the senate. See the distinction?

              Turley knows Cannon is wrong, because if he agrees with her ruling he would be forced to admit that Weiss was also illegally appointed by Garland despite the fact that Turley for months demanded Garland appoint a special counsel. He won’t openly admit it because it would undermine his narrative of being “objective” He doesn’t attempt to offer any analysis about why or why not Cannon’s ruling is correct. He completely avoided that part.

          2. George, you have no idea what you are talking about. None at all. The entire issue is that officers who operate independently must be appointed by a president with the senate’s advice and consent. That means any US Attorney can serve as a special counsel; they have been duly appointed and confirmed so they are officers of the United States. Someone who is not an officer of the United States may only work for the government if he is closely supervised by someone who is; he cannot work independently. Therefore Smith can’t be an independent prosecutor, but Weiss can be. That is all. If you can’t grasp this simple point then you’re a moron.

            1. No, the issue is about the authority of the AG to appoint a Special counsel. Cannon ruled that the AG did not have the authority to appoint a special counsel, none at all. That only the president or Congress can appoint one.

              Cannon is basically making the argument that the Special counsel is too independent.

              You’re the one misinterpreting the ruling and the issue.

              Trump argued that Smith was illegally appointed by Garland because only the president or congress can appoint a special counsel. Cannon took his side and wrongly argued that only the president and congress can appoint a special counsel.

              You are arguing that only the president and can appoint a special counsel with the consent of the senate. Because Weiss was confirmed by the senate as US attorney. That is wrong.

              The whole purpose of appointing a special counsel is to have a completely independent prosecutor investigate. Free from any influence from congress or the president or the AG.

              In US vs. Nixon and the DC circuit cases regarding appointment of special counsels both agreed that the AG indeed has authority to appoint one regardless of confirmation by the senate or appointed by the president. The only qualification to be conferred for special counsel is someone who is independent of both. It does NOT have to be a sitting US attorney. To can be a former judge, former US prosecutor or attorney appointed by the AG.

              Weiss as appointed Special counsel by AG Garland. Turley never once questioned the legality of the AG’s authority to appoint a special counsel because the whole point of appointing one independently of confirmation or appointment by the president removes any appearance of bias which is the whole point.

              Turley never talks about why Cannon is correct or why. He KNOWS she is wrong and he won’t openly admit that she is because he does not want to face the fact that he spent months demanding the AG appoint Weiss as special counsel. Cannon ruled that AG’s cannot appoint special counsels. Only presidents and congress can.

              Weis was only confirmed by the senate for the position of US attorney. NOT special counsel. The law does NOT say ONLY confirmed US attorneys can be appointed special counsels. Neither Turley or Cannon showed case law supporting that assertion.

            2. Milhouse,

              Article II of the Constitution, the attorney general, like all Cabinet officials, can appoint “inferior officers” and can provide funding for them. Statutes give each Cabinet head broad authority to make these appointments.

              There ARE laws giving the AG the authority to appoint a special counsel. Cannon is choosing to deliberately ignore precedent and current law.

              1. George, you still have no idea what you are talking about.

                First of all, there are NO laws giving the AG the authority to appoint a special counsel. You are simply wrong about that.

                Second, the distinction between “officers” and “inferior officers” is precisely the point. An inferior officer has no authority to make decisions independently. That’s what makes him inferior. But a special counsel needs that independence, or he’s just another flunky of the AG, needing to refer every significant decision to the AG for approval.

                And that is the issue here. Weiss is not an inferior officer. He’s a full officer, appointed and confirmed. Therefore he can serve as a true special counsel, making his own decisions. But Smith can’t do that. Either he is secretly referring every significant decision back to Garland, in which case the whole claim that he’s a special counsel is a sham and it’s really Garland who’s been driving the cases, or he is functioning independently in which case he’s not an inferior officer and his appointment was unconstitutional. There really aren’t any other options.

    2. No, because Weiss was already a duly appointed Senate approved US Attorney when he was appointed SP. Same with Durham, for example. Jack Smith was brought up from the minors due to his track record for creative use of criminal law to go after high-profile targets. He’s a headhunter.

      1. It’s irrelevant where the person appointed as special counsel comes from. As long as they are qualified to practice law and have extensive experience in the field they will be investigating they can be appointed as special counsel by the Attorney General.

        Cannon ignored clear precedent establishing the authority of the AG to appoint a special counsel. Turley spent months demanding Garland appoint Weiss as special counsel which Cannon ruled Garland was not authorized to do.

        A special counsel can be anyone. Mueller was not confirmed by the senate prior to being appointed special counsel by AG sessions. He was a former US prosecutor. So was Smith. Even retired judges can be appointed special counsels. 

        She ruled that Merrick Garland didn’t have the legal authority to appoint a Special Counsel, of any sort, whether someone from outside the Department or someone like David Weiss who was already part of it. She punted on most of the question on whether a Special Counsel is a superior officer requiring Senate confirmation or an inferior one not requiring it.

        She skimped over the Nixon ruling on purpose because it undermines her already flawed opinion that relies more heavily on Justice Thomas’s non-binding concurrence.

  19. Exceptionally Spot On, Prof. Turley… former US Atty. Joseph diGenova also gave an outstanding review (on TV) after studying the 94 pages.. the finer points of the laws notwithstanding, the case should have been thrown out after it was discovered that Smith doctored evidence, staged photos, etc. (and God only knows what else happened re: evidence when the raid turned off security cameras..) The added leverage of Smith being illegally appointed was the final straw. Finally.. If Lawrence Tribe is irate, then we know for sure that Judge Cannon made a solid legal move…

    1. eighteenthhole: Thanks for adding new material for everyone to consider (and for pointing out an opinion from another “legal expert” NOT included in the summaries by MSM)

  20. The left is governed by the dictate of their passions (thanx and a tip of the hat to John Adams); there is no consistency or logic in their presentations and their cries of woe and anguish reflect nothing more than an obvious attempt to virtue signal. Except for Tribe, who appears to have forgotten everything he once taught

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