Lots of the legal focus this week will be devoted to Friday, when Judge Aileen Cannon hears arguments about the constitutionality of the special counsel regulations Attorney General Merrick Garland used to appoint Jack Smith to oversee the Trump prosecutions. In the classified documents case in Florida, Trump argues that because those regulations are unconstitutional, Smith’s indictment of him is legally improper and the entire case has to be dismissed.
TL;DR: If this was any other judge, I would not be giving this a lot of thought. Hunter Biden tried this same argument and got nowhere. It was also raised during the Mueller investigation and slapped down.
Judge Cannon has set a day and a half of argument over this matter, including taking the unusual step of hearing from amici—lawyers who do not represent parties in the case, but who filed briefs on both sides of the issue as “friends of the court.” We heard from one of them, Matthew Seligman, in Friday night’s “Five Questions With”, for a deep dive into his view of why the law is constitutional. Seligman noted that, including Trump’s brief, there are three different arguments being made against the constitutionality of the Special Counsel’s appointment, advancing “different, and mutually inconsistent, positions.”
An old friend, Professor John Barrett at St. John’s Law School in New York, made an interesting point about the identity of one of the amici who will be taking the opposite side from Seligman, arguing that the Special Counsel’s appointment wasn’t constitutional. The argument that caught Barrett’s attention was made by Ed Meese, who as U.S. Attorney General in 1987 appointed Lawrence Walsh to serve as Iran-Contra special counsel. Meese will be arguing that Attorney General Garland didn’t have the legal power to appoint Jack Smith to that role.
In 1987 the Court of Appeals for the District of Columbia easily determined that the appointment Meese made was constitutional when it was challenged.
Although the regulation Meese acted under isn’t precisely the same regulation Garland used, it is based in the same statutory authorities that were used when new Special Counsel regulations were promulgated in 1999 when Janet Reno was the Attorney General. They’ve been in use ever since. So there is enormous irony that Meese is now arguing Merrick Garland lacked the power to appoint Jack Smith to be special counsel.
While we wait for Friday in Florida, we’ll also wait to see what the Supreme Court has in store for us this week. Formally, there are only two weeks left in the term, although it seems likely that they will go into the first week of July as well, given the number of remaining cases that are undecided—more than twenty of them. This week we know we will get new opinions on Thursday, but it’s possible they could add in an additional day or days.
Monday is an orders day. Among the important announcements that can bring are decisions on cases the Court agrees to hear—or to pass on—for next term.
Steve Bannon wants to get another stay-out-of-jail card. After being ordered to report to custody on July 1, he’s taken his case to the Court of Appeals, telling them he intends to go to the Supreme Court if necessary. He says he’s serious—he’s hired experienced Supreme Court counsel. And he tells the court that all he has to do to merit release while his appeal is pending is raise “‘a substantial question of law or fact,’ that, if successful, would result in reversal, a shorter sentence, or a new trial … Mr. Bannon is not required to show he is likely to succeed on that issue or that there has been reversible error … Rather, it must only be ‘a ‘close’ question or one that very well could be decided the other way.’” Then he argues that completely failing to comply, at least partially, or show up when subpoenaed for both testimony and documents wasn’t “willful,” so he has raised such an issue.
We may see some action on this matter this week, although not necessarily. Flagging it here so it’s on our radar screen. Unless the Court of Appeals or the Supreme Court rules in his favor, Bannon must surrender to begin service of his sentence on July 1, or the U.S. Marshal will go out to arrest him.
Last week, Trump was busy demanding a show of loyalty from the Republican faithful, summoning members of Congress to Capitol Hill to submit to him. It was an embarrassing display—the supposed party of law enforcement kissing the ring of a convicted felon they’re about to offer to the country as their choice to be president.
Who knows what additional humiliation he will demand from them this week?
NBC’s Peter Alexander reported that President Biden is set to take executive action as early as Tuesday to protect hundreds of thousands of undocumented spouses of U.S. citizens from deportation. Immigration is sure to be a hot-button issue in the election and beyond. It forms an important core piece of Trump’s Project 2025 plan, with Trump already vowing to conduct the largest deportation in history if he wins.
In April, while campaigning in Michigan, Trump spoke about people who are in this country without legal immigration status, saying, “The Democrats said please don’t call them animals they’re humans. I said no, they’re not humans, they’re not humans, they’re animals.” Video here.
Expect lots of opposition and likely a lawsuit seeking an injunction from the right if Biden acts. Keep in mind that back in February Republicans rejected an immigration fix that gave them much of what they’ve been asking for over the years because Trump told them to. Republicans seemed to pass on achieving meaningful reform so they could keep the immigration issue alive for the campaign. “I think the border is a very important issue for Donald Trump. And the fact that he would communicate to Republican senators and congresspeople that he doesn’t want us to solve the border problem because he wants to blame Biden for it is … really appalling,” Utah’s Republican Senator Mitt Romney said at the time. Texas Republican Troy Nehls explained his opposition to the border deal, “Let me tell you, I’m not willing to do too damn much right now to help a Democrat and to help Joe Biden’s approval rating.” They even criticized Biden for not using executive orders to fix the problems at the border, a cynical approach for a party that criticized Obama for using them too broadly.
Trump called the bill, which would have resulted in faster and tougher enforcement of the asylum system and the ability to expel migrants when levels exceeded a set number of people crossing the border a day, “another Gift to the Radical Left Democrats.”
The public and the press seem to have short memories on this one, with Trump’s criticism of the Biden administration over issues like crime committed by immigrants garnering a lot of attention while Republicans have walked away without being assigned any responsibility for rejecting the immigration reform deal.
Finally, both House and Senate Democrats seem to remain engaged on the issue of Supreme Court reform in the wake of the most recent disclosures regarding Justices Thomas and Alito. Will the noise translate into action after Senate Republicans blocked reform last week? Maryland Representative Jamie Raskin called for reform on MSNBC Sunday, saying, "The real problem is that there's no binding ethics code on the Supreme Court, so the highest court in the land has the lowest ethical standards." This issue has received more attention in the last month than it has up until now, in large part because the public has remained engaged this time. Make sure your representatives know that when you vote in November the Court—and elected leaders who will work to restore its integrity—will be on your mind.
We’re in this together,
Joyce
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