My instinct is like yours, but wouldn’t refiling with a new indictment likely suffer from the new prosecutors being unable to use evidence obtained after Smith’s appointment as special prosecutor? Otherwise the new team would be using fruit from the poisonous tree like what happens with evidence obtained from an unconstitutional search and seizure. Some key things Smith got after the original indictment would be (1) Evan Corcoran’s testimony. (2)Yuscil Taveras’ cooperation, (3)some, but not all, of the surveillance footage.
I don't think there's any precedent for applying a "fruit of the poisonous tree" analysis here. The facts are the facts; Cannon's ruling just says they can't be prosecuted by Smith. I don't think there's some kind of exclusionary rule that would apply to a subsequent indictment.
That might be possible although it would be very unusual, but I guess I don't see the purpose. DOJ might well lose on appeal with this SCOTUS. Plus I imagine that once there is a new indictment, the appeal would be vulnerable to a motion to dismiss it as moot.
Perhaps I missed it…but what about the second plank on which the judge made her ruling: that upwards of $12M of expenses (so far) had not been appropriated by Congress?
She did make that as an alternative finding, but said she wasn't sure what the remedy would be and didn't need to decide because the appointments clause issue was enough to dismiss the case. But I think having the U.S. Attorney bring the case would also solve that problem, because the funding would be coming from the regular appropriations for DOJ, used by a presidential appointee.
My instinct is like yours, but wouldn’t refiling with a new indictment likely suffer from the new prosecutors being unable to use evidence obtained after Smith’s appointment as special prosecutor? Otherwise the new team would be using fruit from the poisonous tree like what happens with evidence obtained from an unconstitutional search and seizure. Some key things Smith got after the original indictment would be (1) Evan Corcoran’s testimony. (2)Yuscil Taveras’ cooperation, (3)some, but not all, of the surveillance footage.
I don't think there's any precedent for applying a "fruit of the poisonous tree" analysis here. The facts are the facts; Cannon's ruling just says they can't be prosecuted by Smith. I don't think there's some kind of exclusionary rule that would apply to a subsequent indictment.
Sounds like a very reasonable approach, Randall. Your mouth to Smith’s ears.
Why not both appeal & re-indict?
That might be possible although it would be very unusual, but I guess I don't see the purpose. DOJ might well lose on appeal with this SCOTUS. Plus I imagine that once there is a new indictment, the appeal would be vulnerable to a motion to dismiss it as moot.
Perhaps I missed it…but what about the second plank on which the judge made her ruling: that upwards of $12M of expenses (so far) had not been appropriated by Congress?
She did make that as an alternative finding, but said she wasn't sure what the remedy would be and didn't need to decide because the appointments clause issue was enough to dismiss the case. But I think having the U.S. Attorney bring the case would also solve that problem, because the funding would be coming from the regular appropriations for DOJ, used by a presidential appointee.