Addressing the surprising move by U.S. District Court Judge Aileen Cannon to dismiss the classified documents case against former President Donald Trump — considered by many legal experts to be the most straightforward and strongest of the pending cases against Trump — attorney and Boston University Law Professor Jed Shugerman wrote that Cannon “actually does a good job explaining that the statutes that the DOJ relies on are not clear or leave questions.”
[NOTE: Cannon dismissed the case on the claim that the appointment of Special Counsel Jack Smith was not legal. The decision is expected to be appealed, which those who believe Cannon’s decision was in error, like Texas Law Professor Lee Kovarsky (below), characterize as an opportunity.]
Good!
Now the case can go up and CA11 can decide whether to remove her. And we avoid (probably) the scenario where this happens after the jury is sworn and jeopardy attaches.
Of course Trump will dismisses the prosecution if he wins election. https://t.co/For9KDOf7M
— Lee Kovarsky (@lee_kovarsky) July 15, 2024
Shugerman, who has been closely following (and commenting on) all the legal cases against Trump, says he acknowledges in the documents case that “the statutory basis for Smith’s appointment is not textually obvious” — underscoring this observation with the understanding that many actions the government takes are not, despite the wish of textual originalists, “textually obvious.”
Shugerman insists that in cases where such obviousness is missing, there is a well-worn path to take. He asks: “But what do judges do when they have such doubts?” He answers, with all caps being his: “Read PRECEDENTS.”
3/ I acknowledge the statutory basis for Smith’s appointment is not textually obvious.
Judge Cannon actually does a good job explaining that the statutes that the DOJ relies on are not clear or leave questions.
But what do judges do when they have such doubts?
Read PRECEDENTS.
— Jed Shugerman (@jedshug) July 15, 2024
Claiming to be “shocked but not surprised,” Shugerman implies that Cannon needed to perform some legal contortions to arrive at her conclusion, including misreading U.S. v. Nixon. “Clearly she was desperate to dismiss the Watergate case US v. Nixon & DC Cir. precedents in order to dismiss this case,” he writes.
4/ I think she grossly misreads SCTOUS accepting the Watergate prosecutor’s appointment in US v. Nixon in a tendentious way to reach her preferred result.
She claims that it was dicta b/c Nixon didn’t raise it.
She buries the lead:
NIXON DIDN’T THINK IT WAS WORTH RAISING.
— Jed Shugerman (@jedshug) July 15, 2024
The eminent Harvard Law School Professor Emeritus and vocal Trump critic Laurence Tribe called Cannon’s decision “unthinkable,” saying the judge’s reasons for the dismissal had been “repeatedly rejected.” (There is precedent again.) Tribe asserted that “On SCOTUS, only Justice Thomas took that view in Trump v. United States.”
Judge Cannon just did the unthinkable: She dismissed the Trump classified documents case on the repeatedly rejected basis that DOJ violated the Constitution’s Appointments Clause by appointing Special Counsel Smith at all! DOJ must appeal right away. On SCOTUS, only Justice…
— Laurence Tribe (@tribelaw) July 15, 2024