In the world’s least surprising plot twist, the Justice Department has withdrawn its appeal to the Eleventh Circuit in the stolen documents case. And — don’t stop the presses! — Trump’s henchmen Walt Nauta and Carlos De Oliveira have no objection.
This turn of events became inevitable on November 5, when Trump won the election. But it’s an exceptional fuck you in light of everything that happened in the past three weeks.
To refresh: Trump’s favorite jurist, Judge Aileen Cannon of the Southern District of Florida, used the pending appeal as justification to bury half of Special Counsel Jack Smith’s final report. Her theory was that the report could not be released, even in camera, to the leaders of the House and Senate Judiciary Committee, lest its conclusions leak and damage the integrity of the trial.
Of course, there was never going to be a trial. Judge Cannon dismissed the case last summer on the theory that special counsels are somehow illegal — a conclusion which managed to elude every other jurist who examined it, including the ones at One First Street. That dismissal was on appeal to the Eleventh Circuit, which would appear to divest the trial court of jurisdiction. But lack of jurisdiction has never stopped Judge Cannon before!
The Eleventh Circuit declined to intervene to stop the special counsel from publishing Volume 1, which dealt with the election interference case, or from sharing Volume 2 with Congress. But the appeals court refused to tell Judge Cannon to knock it off, so she dutifully dove on the grenade. On the Friday before Trump’s inauguration, she held a hearing — complete with oral argument by amici, natch — before deciding that release of the report would compromise the cases of poor Nauta and De Oliveira. But that decision came after Trump was safely sworn in, at which point the prospect of anyone seeing that report was functionally nil.
Acting Attorney General James McHenry fired a dozen experienced prosecutors who worked on the special counsel investigation, writing “Given your significant role in prosecuting the President, I do not believe that the leadership of the Department can trust you to assist in implementing the President’s agenda faithfully.” (Is the Justice Department supposed to be “implementing the President’s agenda faithfully?”)
Ed Martin, the interim US Attorney for DC, is now investigating the January 6 prosecutors for charging so many defendants with obstructing an official proceeding under 18 USC § 1512, calling it the “great failure of our office,” and dubbing his quest “Project 1512.” Martin, a former Trump PAC official who marched on the Capitol on January 6, seems unbothered by the fact that every trial judge but one agreed with the DOJ’s interpretation of the law, and upwards of 100 defendants were convicted by juries under it.
And no one expects Pam Bondi to concern herself much with 28 CFR § 600.9 and its mandate that “The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” of the special counsel’s declination decisions, along with an explanation. She’ll probably be too busy indicting Jack Smith for malicious jaywalking and cutting Trump a $100 million check in his tort suit against the DOJ for the “illegal” judicially authorized search of Mar-a-Lago.
Dismissing the appeal means the DOJ is now stuck with Judge Cannon’s fakakta precedent on special counsels. It’s a small price to pay to blow up the last vestiges of accountability for the man who tried to mount a coup to stay in power. The Trump administration can always ignore the ruling when they want to appoint a special counsel to prosecute Jack Smith — they’re certainly not averse to ignoring laws and precedents as the situation requires.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
The post Trump DOJ Dismisses Stolen Docs Case It Used To Bury Special Counsel Report appeared first on Above the Law.
In the world’s least surprising plot twist, the Justice Department has withdrawn its appeal to the Eleventh Circuit in the stolen documents case. And — don’t stop the presses! — Trump’s henchmen Walt Nauta and Carlos De Oliveira have no objection.
This turn of events became inevitable on November 5, when Trump won the election. But it’s an exceptional fuck you in light of everything that happened in the past three weeks.
To refresh: Trump’s favorite jurist, Judge Aileen Cannon of the Southern District of Florida, used the pending appeal as justification to bury half of Special Counsel Jack Smith’s final report. Her theory was that the report could not be released, even in camera, to the leaders of the House and Senate Judiciary Committee, lest its conclusions leak and damage the integrity of the trial.
Of course, there was never going to be a trial. Judge Cannon dismissed the case last summer on the theory that special counsels are somehow illegal — a conclusion which managed to elude every other jurist who examined it, including the ones at One First Street. That dismissal was on appeal to the Eleventh Circuit, which would appear to divest the trial court of jurisdiction. But lack of jurisdiction has never stopped Judge Cannon before!
The Eleventh Circuit declined to intervene to stop the special counsel from publishing Volume 1, which dealt with the election interference case, or from sharing Volume 2 with Congress. But the appeals court refused to tell Judge Cannon to knock it off, so she dutifully dove on the grenade. On the Friday before Trump’s inauguration, she held a hearing — complete with oral argument by amici, natch — before deciding that release of the report would compromise the cases of poor Nauta and De Oliveira. But that decision came after Trump was safely sworn in, at which point the prospect of anyone seeing that report was functionally nil.
Acting Attorney General James McHenry fired a dozen experienced prosecutors who worked on the special counsel investigation, writing “Given your significant role in prosecuting the President, I do not believe that the leadership of the Department can trust you to assist in implementing the President’s agenda faithfully.” (Is the Justice Department supposed to be “implementing the President’s agenda faithfully?”)
Ed Martin, the interim US Attorney for DC, is now investigating the January 6 prosecutors for charging so many defendants with obstructing an official proceeding under 18 USC § 1512, calling it the “great failure of our office,” and dubbing his quest “Project 1512.” Martin, a former Trump PAC official who marched on the Capitol on January 6, seems unbothered by the fact that every trial judge but one agreed with the DOJ’s interpretation of the law, and upwards of 100 defendants were convicted by juries under it.
And no one expects Pam Bondi to concern herself much with 28 CFR § 600.9 and its mandate that “The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” of the special counsel’s declination decisions, along with an explanation. She’ll probably be too busy indicting Jack Smith for malicious jaywalking and cutting Trump a $100 million check in his tort suit against the DOJ for the “illegal” judicially authorized search of Mar-a-Lago.
Dismissing the appeal means the DOJ is now stuck with Judge Cannon’s fakakta precedent on special counsels. It’s a small price to pay to blow up the last vestiges of accountability for the man who tried to mount a coup to stay in power. The Trump administration can always ignore the ruling when they want to appoint a special counsel to prosecute Jack Smith — they’re certainly not averse to ignoring laws and precedents as the situation requires.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
