The Weekend Wrap: October 27, 2024

Trump's brief filed in the 11th Circuit

Welcome to the Weekend Wrap! Here are the week’s white collar highlights:

Trump Prosecutions

Florida Federal Case - Mar-a-Lago Documents

Trump’s attorneys filed their brief in the 11th Circuit in special counsel Jack Smith’s appeal of Judge Cannon’s dismissal of the case. Not surprisingly, they argued that Judge Cannon’s decision was legally sound and correct. They made their by now familiar arguments that Smith’s appointment was unconstitutional because there is no law that explicitly provides for the appointment of a special counsel, as required by the Constitution’s Appointments Clause. They also briefly argue that Smith is acting as a “principal officer” under the Constitution who would need to be appointed by the president and confirmed by the Senate, and that the funding for Smith’s office violates the Constitution’s Appropriations Clause.

As we’ve noted here before, Cannon’s decision is an outlier. It seems foreclosed by 150 years of Justice Department practice, decisions from other courts, and language from the Supreme Court’s decision in Nixon v. United States. I expect the 11th Circuit will reverse. I’m not as confident, however, about what the current Supreme Court will do if it decides to weigh in.

Defendant Walt Nauta requested a three-day extension of time to file his own brief, so it is now due tomorrow, the 28th. Smith’s reply brief will be due at the end of November and the case should be scheduled for oral argument.

There is also an interesting side story in Florida involving Judge Cannon. There have been many calls for Smith to seek to have Cannon removed from the case, given her foot-dragging and rulings that appear to be biased in Trump’s favor. To this point Smith has not sought her removal, although two amicus briefs filed in the 11th Circuit make that argument.

Now the issue of Judge Cannon’s recusal in a Trump-related case has come up in a different setting. The prosecution of Ryan Routh, the would-be Trump assassin from his Florida golf course, was also randomly assigned to Judge Cannon. Routh has now moved to have Cannon recuse herself. He argues that the public might reasonably question Cannon’s impartiality in a case where Trump was the intended victim. He points to the facts that Trump appointed her, has repeatedly praised her in public, and could reward her with a higher court appointment if he wins re-election. In his reply brief he also highlighted recent press reports that Trump might consider Cannon for attorney general in his next administration.

Routh is being prosecuted by Justice Department attorneys, and his request put them in an interesting box. If they opposed Routh’s request by arguing there is no reason to believe that Cannon could not be fair and impartial in a case involving Trump, would that undercut Smith’s arguments in any later claim that Cannon should be removed from his case?

DOJ did end up opposing Routh’s request to have Cannon recuse herself, but it’s not what you’d call a vigorous opposition. Their pleading is only one and one-half pages long and says only that Routh has not met the legal standard for requiring Cannon to recuse. The prosecutors say nothing at all about Cannon herself or her ability to be fair. It’s hardly a ringing endorsement of her judicial integrity and impartiality.

I can see why, institutionally, DOJ felt that it had to oppose Routh’s request. The motion was very weak, and DOJ has to consider future cases and its ability to resist judge-shopping by defendants. Routh’s argument was based only on appearances, not on anything Cannon actually said or did. And the fact that a president appointed a judge has never been considered enough to require that judge to recuse from a case involving the administration - although admittedly this situation is unique, where that president is also the alleged intended victim. 

If there does come a time when Smith seeks to have Cannon removed, it will be based not just on the fact that Trump appointed her and regularly praises her but on things she has actually done in the case. There would be a concrete track record of her actions on which to base the motion. Still, the atmospherics of DOJ being forced to (sort of) stick up for Cannon’s impartiality in the Routh case did make things a little awkward.

Roger Parloff at Lawfare had a good article on this last week, if you’re interested in a deeper dive.

Georgia State Case - January 6 Allegations

On Thursday the U.S. Court of Appeals for the 11th Circuit affirmed a district judge’s denial of Jeff Clark’s request to remove his Georgia state prosecution to federal court. Clark, you’ll recall, was the senior DOJ official whom Trump enlisted in the efforts to overturn the election. Trump was going to appoint Clark as acting attorney general to help him carry out the scheme until a threat of mass resignation from other DOJ officials forced him to back down.