The Cross Examiner/Graham: Welcome to another episode of the Cross Examiner Rocket Docket, where you are the judge here. We brief you on the news of the day so that you can issue a ruling. Get ready to hear the arguments, because court is now in session. Welcome, welcome. Welcome to the Cross examiner podcast. I am your host, the cross examiner. I am an attorney, I am an atheist, and I am alarmed. I’m alarmed by the rise of christian nationalism in the United States. And more importantly, I’m alarmed by the massive amount of misinformation that is powering that rise. Today is a rocket docket episode. these are unscripted, usually reacting to current events. And today we’ll be talking about one special trick that you can use to get out of criminal prosecutions if you’re Donald Trump. the story, of course, is about Eileen Cannon, the judge, federal judge down in Florida, has dismissed a case, the secret documents case, against Donald Trump. And her reasoning, is being called into question. And rather than have you rely on talking heads on news shows that give you just a summary statement, you know what I like to do? I like to dig into the details so you can fully understand what’s going on here and why this is, ridiculous. But to tell this story, I have to start with another story, as is so often the case. And where I’m choosing to start this story is with the Vietnam war. So you may recall that there was a war in Vietnam that the United States engaged in, and a lot of people were unhappy with that war. some of those people had access to secret information and learned that the United States had been lying to the world, lying to the citizens, for not just the current administration, but previous administrations. One of those people was named Daniel Ellsberg. He was a MIT researcher that had also worked for the, Rand foundation and other places, who had access to information during his research that proved that, things like, Lyndon Johnson, who had campaigned on staying out of Vietnam or not escalating Vietnam, nothing sending troops to Vietnam had planned all along, prior to the, election, to at least bomb, Vietnam, if not go, increase, war efforts there. in fact, when he was campaigning, he criticized his opponent, Goldwater, for being a hawk, for wanting to increase, hostilities, while all along, these papers revealed that he had planned to do that as well. They contained a lot of other information. The illegal bombing of Cambodia and Laos, all sorts of stuff that, if it got out, would utterly turn public opinion against the United States, at least against the, administrations who had concealed this information. And it dated back to the Kennedy administration. These came out because Daniel Ellsberg chose to reveal them. And the way he did that was by giving them to the New York Times. I think the best way to really understand what this was like is to listen to a few news reports. So here is a united, press, talking about the history of this case and here, all followed by, Walter Cronkite reporting on the day that Daniel Ellsberg turned himself in for having stolen these documents and, being in possession of, national secrets, just like Donald Trump. So let’s give a listen.

Speaker B: The Trisha Nixon wedding was dutifully reported the next day in newspapers all over the nation. But on that Sunday, June 13, one paper had something on the front page that no other paper had. For on that day, the New York Times began publishing top secret, sensitive details and documents from 47 volumes that comprise the history of the us decision making process on Vietnam policy, better known as the Pentagon papers. After the government said the publication of this material would cause irreparable injury to the defense interest of the United States, a federal judge ordered the Times to temporarily halt the publication of the papers. The Times said what was revealed had to be revealed, that, people had the right to know. Times publisher Arthur och Sulzberger.

The Cross Examiner/Graham: These papers, I think, as our editorial said this morning, were really a part of history that should have been made available, considerably longer ago. And I, just didn’t feel there was any breach of national security in the sense that we were giving secrets to the enemy.

Speaker B: In Boston, Doctor Daniel Ellsberg, the man named as the source of the Pentagon copy that appeared in the New York Times, turned himself in today to federal authorities. David Culhane reports. Even if the FBI had wanted to.

The Cross Examiner/Graham: Arrest him outside the courthouse this morning, they probably couldn’t have done it. Ellsberg was walled off by a mob of newsmen and supporters as he admitted that he was indeed the man who.

Speaker B: Brought the Pentagon papers to the press and congressional leaders.

Daniel Ellsberg: In the fall of 1969, I took the responsibility, on my own initiative, of delivering to the chairman, the foreign relations Committee of the US Senate, or the information contained in the so called Pentagon papers, including the several studies on negotiations which have not been given to any newspaper. I could only regret that I had not, at that same time, release that information to the american public through the newspapers. I have now done so. I can no longer cooperate in concealing this information from the american public. I did this clearly at my own jeopardy, and I am prepared to answer to all the consequences of these decisions. That includes the personal consequences to me and my family and whatever these may be.

The Cross Examiner/Graham: Hey, wait a minute.

Daniel Ellsberg: After all, be more serious than the ones that I and millions of other Americans have risked before this in the service of our country.

The Cross Examiner/Graham: So you may be wondering, what does this have to do with Donald Trump, other than Ellsberg had stolen secrets and Trump has stolen secrets? Well, this case created concern in the Nixon administration. The Nixon administration was not implicated by the Pentagon papers directly. In fact, Nixon’s political instincts were to just stay out of it because it had nothing to do with anything he was doing. But Henry Kissinger advised Nixon to try to prosecute Ellsberg and try to prosecute the New York Times, for, publishing this information. Now, people debate why Kissinger did that. Some people say that it’s because he had a previous relationship, you know, a close working relationship with Ellsberg, and he wanted to distance himself from him for whatever the reason, Nixon went along with that and tried to shut down the New York Times publication of this information. At first, they succeeded. The district court held that, the New York Times could not publish this, and they put a temporary restraining order on them from publishing any more papers after they had published some of them. Then the case ended up going to the Supreme Court. And in a six three opinion, the court held, in order to prevent people from speaking ahead of time, which is called prior restraint, the court pointed out, you have a massive burden, as the government, to show imminent harm to national security or actual loss of life, things like that. That’s a really hard thing to do, to say, I’m going to prevent you from even speaking before you say what you’re about to say. And the court recognized that. So the New York Times was allowed to publish everything. And when it all came out, Ellsberg, the case against Ellsberg was dropped eventually because it was ludicrous. The amount of information in here that was damning to the people that were pushing for this military, industrial complex effort to keep, making money off of the war. Justifications, for staying in the war included things like, we don’t want to be embarrassed by leaving. Like, that was 70% of why they were staying in the war. so Ellsberg was vindicated. He was sort of the original Edward Snowden, if you will, chose, as you heard in the news report, to say, I’m willing to go to prison for this, but I don’t want thousands of our boys being shipped off. And again, lower and middle class boys, never the upper class boys, right? Never the sons of the rich and powerful, Mister bone spur, Donald Trump. I don’t want our young boys being shipped off, like hamburger meat and just, destroyed in Vietnam. So he did a wonderful thing. So the reaction to this in the Nixon administration, in addition to going after the New York Times, was to create an internal security, team, information security team, that became known as the plumbers. And the way that they got to be known as the plumbers is one of them was asked by their grandmother, what do you do? Or what are you going to do in the White House? And he told her, I’m there to fix leaks, as in the leak of information. And she said, oh, so you’re a plumber. And he liked that so much that he, I think he put a sign up on his office or piece of paper that said, the plumbers. And that’s what they became known as. Shortly after the plumbers were formed, a. Nixon’s enemy list is started by White House aides, though Nixon may not have been aware of it. and it was, quote, to use the available machinery of the federal government to screw our political enemies. Does this sound familiar? Does this what Trump and project 2025 are swearing to do? You’re going to see a lot of these echoes. So then, on September 3, 1971, the plumbers, G. Gordon Liddy, and others, break into the offices of Daniel Ellsberg’s psychiatrist. Daniel Ellsberg, the man who, released the Pentagon papers. And they did not find anything at that point. They didn’t find any files, although his psychiatrist said that there was a file on the ground for Ellsberg, and it was open. So they may have been lying about that and may have never, been forced to release whatever they stole or took pictures of. Then we have, what’s the next step? So J. Edgar Hoover dies May 2, 1972, and Patrick Gray is appointed the acting FBI director. And then shortly after that, about three weeks after that, May 28, 1972, the plumbers break in to the Democratic National Committee headquarters at the Watergate complex in, Washington, DC, and bug telephones of the staffers. They realized that there was a problem there, and they had to go back in to fix some of the bugs and steal more information because they wanted to spy on the Democrats. Because there was an election going on. Nixon wanted to win a second term. So on June 17, 1972, they go back to the Watergate, Watergate complex and break in again to plant more bugs and fix the bugs that they’d planted before. Now, they had lookouts. There was a restaurant called Howard Johnson’s across the street from the Watergate complex. And there was a lookout posted there. But he was distracted, just like you see in the movies. It’s kind of incompetent. Like, I I don’t know if breaking in to spy on, political enemies of the president and committing what is could be a felony is humdrum for these people. But he was distracted by watching some b movie on tv called the attack of the puppet people. Like, not even a good movie. And he didn’t notice when police showed up. And the police showed up because an alert security guard at Watergate noticed that some doors had their Ydez latches taped over so that when you close the door, it wouldn’t lock. And at first, he just took the tape off, thinking somebody was moving something in or out. But then when he patrolled back, after a while, he saw the tape was there again. And that’s when he called the police. They show up. The lookout is watching attack of the puppet people. They end up arresting, g. Gordon Liddy’s team, the plumber run team, at, 02:30 a.m. m in the democratic, national committee offices. So this is, the beginning of the unraveling of the Nixon administration is when this arrest starts happening. And you may have heard of, Bob Woodward, Woodward and Bernstein, who investigated this. And they got a tip from, somebody at the time. They used a code word, deep throat, who ended up being FBI agent Mark felt. We only found that out very recently. For 50 years, nobody knew who this was, but basically told them to follow the money. That was the big line. If you’ve ever seen the film, all the president’s men’s great movie about this, he tells them, follow the money. So they start investigating how these are burglars. These, foreign national burglars at the Watergate building were paid, and they found payment records and invoices. And this is how people get caught all the time. And it ran into the White House. And very quickly, people lawyered up. It was obvious that there was a problem. So meanwhile, and by September, they’re indicted at federal grand jury, and in November, Nixon is reelected in a landslide. It was the largest plurality of votes in american history. I think it is to this day, if I’m not mistaken. So don’t be, don’t be fooled by your, what you know now about Nixon. He was very popular, right? He was a horrible, evil, racist, misogynistic, horrible man. But he was insanely popular again, just like Trump is today. He’s got a huge amount. Millions and tens of millions of people are going to vote for him and he’s probably will win this election, especially after the assassination attempt. I can’t believe that I’m saying that past cross examiner would be amazed to hear those words coming out of my mouth, but that is, that’s the reality we’re living with. So he’s inaugurated and they need to appoint, ah, a, new FBI director and they begin hearings for Patrick Gray. At his confirmation, Gray testified that he had complied with an order from John Dean, who was White House counsel under Nixon, to provide daily updates on the Watergate investigation to the White House. And this was a real problem. The Department of Justice is supposed to be at arm’s length from the president. The president can hire, fire the attorney general, but that’s supposed to be pretty much all he should do. And this is just like Trump, right? Nixon, it comes out, he’s going to fire a bunch of people, he’s going to, he’s going to put pressure on the attorney general’s office to protect him, just like Trump did. You may remember Trump fired a bunch of people to try to protect him during the Russiagate, right. in instances, investigation. he fired acting attorney General Sally Yates, he fired us attorney Preet Bahara, he fired FBI director James Comey, he fired deputy attorney general Rod Rosenstein. Side, note, I took a class from Rod Rosenstein when I was in law school. I disagree with him politically. He, was my professor. He taught, federal prosecutor, the role of the federal prosecutor’s office. And I took that class as an elective. He was an excellent professor. He brought, assistant us attorneys with him and I learned a lot from them. I disagree with his politics, but I think at his core he is a smart person. So, yeah, I was, I was saddened to see that that happened. But you know, when you’re going into that job, he was, he’s the one who, who said, hey, it’s my job to, to land the plane of this investigation. And the press debated whether he meant, like, for Trump or not. I don’t think he was in a fan of Trump. I think that he was trying to help the country and he stepped in, tried to help, got fired because he wouldn’t do what Trump wanted to do. I think that’s sort of the proof is in the pudding. He fired acting FBI director Andrew McCabe, he fired, Attorney General Jeff Sessions, he fired, ah, acting FBI director Christopher Wray. He fired, he tried to fire special counsel Robert Mueller, right. That’s what we’re dealing with today, special counsels. So Trump is, is just like Nixon. So here we have the Nixon White House ordering Gray to give them daily updates. And Gray testifies at his hearing that John Dean, White House counsel, had, quote, probably lied to FBI investigators. Again, more unraveling of what’s going on. So, they need a new attorney general. And the problem is, by this point, Congress is got blood in their nose, they’re on the scent of Nixon, and they are chomping at the bit to get, an investigation going. And what Congress does is say we aren’t going to confirm any attorney general unless they appoint a special prosecutor to the Watergate affair. So, Richardson, ah, this is, Elliot Richardson is nominated and he calls somebody, that you, you should know this name, Archibald Cox. He ends up appointing Cox as special prosecutor. And by saying he will do that, Congress approves of Richardson’s appointment as attorney general. So Congress, is well aware. That’s, that’s the first, 1st thing you should remember. Congress is well aware of the existence of special prosecutors. And they insisted upon them because they wanted independence from the executive. That’s what they wanted. A whole bunch of things happened. I’m going to skip. There’s a, whole bunch of things we’re going to skip to the Saturday night massacre. The Saturday night massacre is when, in a single evening, Nixon ordered Attorney General Elliot Richardson, the guy I just talked to, to fire Archibald Cox, the special prosecutor. Richardson refuses and resigns immediately. Nixon then calls Deputy attorney General William Ruckelshaus to fire Cox. He refuses and resigns. So this is just like what we saw with Trump, right? With Jeff Sessions and my old professor Rod Rosenstein, getting people, trying to get people fired to find somebody who will end this investigation into him. So Ruckelhaus resigns, and Nixon then finds the third most senior official at the Justice Department, which is solicitor general Robert Bork. You may remember Bork as a law professor, and he had a bunch of stuff, there’s a whole term called getting borked now in the legal history, we won’t go into that. Bork said that he wanted to resign, that he would do it and then he would resign afterwards. But Richardson and Ruckelhaus, who had resigned, encouraged him to stay on because they needed basically adults in the room, they needed somebody there who would possibly be a check on Nixon’s power. Now, how did that work? What was the order of our operations there? I don’t know. Did he have that conversation? And they convinced him. Go ahead. We’ve, we’ve both of us resigned. This is going to be the biggest scandal in us history. You don’t need to resign. Go ahead and get rid of Cox and then stay on. This was the final nail in the coffin for Nixon. The impeachment process against Nixon started a week later, about ten days after the Saturday night massacre. Meanwhile, public pressure was so great that Nixon, was forced to appoint a new special prosecutor after Cox was fired. And that was, Leon Jaworski. He is the special prosecutor now in charge of investigating all crimes related to the election. That’s how broad the power was. Remember I told you Gray was going to appoint Cox? And. And Gray’s appointing of Cox was part of the deal of him getting approved as attorney general. Well, in order to convince Cox to be the special prosecutor, Gray had to agree with Cox to make it a fairly broad authority in the appointment. Cox had woken up the morning he got the call. He woke up and he had lost hearing in one of his ears. And he later found out that would be a permanent hearing loss, and he was not feeling up to the task of becoming the new special prosecutor in the. In the crosshairs of the Nixon administration. Right. so Richardson did some wheeling and dealing to convince Cox to come along. He is given this authority to investigate anything with any crimes related to the election, and this is how we handle it. Right. So if Trump were serious about the election being stolen, this is what he would have done. Create a special prosecutor, give them broad authority, an independent. That’s why we have special prosecutors, independent from anybody. I can’t control you. All I can do is hire or fire you. And that’s what Cox had. He would. Trump would appoint a special prosecutor to investigate any crimes related to his law. Election loss right before he loses office and get that ball rolling. He knew he had no evidence, which is why he didn’t do this. So Nixon appoints Jaworski. He gets a subpoena ordering Nixon to release the White House tapes. The Nixon tapes. And Nixon fights that subpoena, and that goes all the way up to the Supreme Court in a case called us v. Nixon. And that is where we jump back into today’s opinion by just Judge Eileen Cannon, because she ignores us v. Nixon and other cases. So thank you for going on that journey with me. I wanted to make sure you under sort of understood how important this was to the country when this us v. Nixon case comes to the supreme Court in the. In the opinion, which I believe is eight to one, let me make sure it’s yes, a unanimous opinion, I think. Yes. Rehnquist, recused himself because he had previously served in the Nixon administration as assistant attorney general. So that was a time even Rehnquist, who I disagree with on his judicial philosophy, but this was a time, this was 1974, when this case was decided, when justices would actually recuse themselves due to even the appearance of impropriety or an appearance of a conflict of interest. I’m pretty sure Rehnquist would have, joined the majority. Okay, so it would have been a nine to one. It’s an eight, nine to zero. It’s eight to zero. Unanimous opinion saying, yeah, you have to turn over the tapes. You’re not immune from this. You’re not. You don’t have executive privilege like you. You claimed you have to give this over to the investigator. And during that opinion, they talk about the appointment of the special prosecutor. And I want to read from the opinion right now. This is what the court says about the special prosecutor. in the Watergate case, quote, under the authority of article two, section two, that’s of the constitution, Congress has vested in the attorney general the power to conduct the criminal litigation of the United States government. So, in other words, the Constitution gives Congress the power to create offices and, allow the president to appoint officers with their approval. That’s article two, the executive. And two is powers, I think. Section two. in 28 USC section 516, it has also vested him the power to appoint subordinate officers to assist him, him being the attorney, the attorney general, in the discharge of his duty. So what is 28 USC, section 516? So USC is United States code. That is the law of the United States, the federal law, not your state law. I’m in Maryland. We have our own Maryland code. Code, is just means it’s been codified, it’s been written down, and it’s been published in books and things like that. So 28 USC 516 means volume 28. If it were printed out, they would have books, and the one with the number 28 on the spine would be the section we’re talking about, which has to do with the, among other things, the Department of Justice, section 516. So you would pull out book 28, you’d open up to section 516, and who knows what page number that is. You go by section numbers. and they say, section 516 has vested in the attorney general the power to appoint subordinate officers to assist the attorney general in the discharge of his duties. So let’s read what, that says. So, 28, what did we say 515 is entitled authority for legal proceedings, commission, oath and salary for special attorneys. This sounds very on point. Quote, the attorney general or any other officer of the Department of Justice, or any attorney specially appointed by the attorney general under law, may, when specifically directed by the attorney general, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings, before committing, magistrate judges. Judges, excuse me, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought. So the attorney general or any other officer that is appointed by him has the authority to conduct any legal proceeding on the behalf of the United States, criminal or civil. That’s what 5515, says, but they’re not done. The Supreme Court then goes on to say, 28 USC, sections 509, 510, 515, and 533 also are relevant. And then they say, and we’ll read those. They say, acting pursuant to those statutes, 509, 510, 515, 533, the attorney general has delegated the authority to represent the United States in these particular matters. The Watergate investigation, the investigation to any crimes related to the election, to a special prosecutor with unique authority and tenure. The regulation gives the special prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially, delegated duties. So here we have the Supreme Court acknowledging that these laws passed by Congress give the attorney general authority to appoint special prosecutors. I mentioned a bunch of them. 509, 510, 515, 533. Let’s just skip to 533. That one’s sort of the nail in the coffin, in my opinion. let me look it up here. Investigative and other officials appointment. The attorney general may appoint officials. And then there’s a list of numbers. One, to detect and prosecute crimes against the United States. I, Need I go on? We’re done. This seems pretty clear, right? The Supreme Court said this was okay. They acknowledged all of these sections that grant the prosecutor, this special prosecutor, this authority, as setting the table for why they are going to move forward and render this opinion in the Watergate tapes, issue. If this is so clear, we have to ask, why did Judge Cannon hold that the opposite was true? That’s a great question. I’m glad you asked. The answer is, because Clarence Thomas told her to, and I’m only slightly tongue in cheek on that one. You may remember that there was a kind of a side case in the nation’s history a week or two ago. God, it seems like forever, but it’s only been a couple of weeks where the United States Supreme Court, issued the immunity ruling. Donald J. Trump v. Us. Sound familiar? Nixon v. Us. Trump v. Us. Isn’t it interesting that these. These people keep having these cases? Well, in the immunity, case, keeping in mind this came up as part of a special counsel investigation, into Trump. They didn’t discuss special counsels at all. In the majority opinion, Thomas, who, concurred in the opinion, wrote a separate opinion to add his own two cent. And in his own two cent, he says, hey, if you are unable, through statute, to justify the appointing of a special counsel, then all of this doesn’t matter, because it would be, unconstitutional for anybody that wasn’t appointed legally as a special counsel to prosecute Trump. He. That’s the long and short of it. And he starts by reviewing the appointments clause, article two, section two, clause two of the Constitution, same way that, the Nixon court does. But then he starts twisting, sort of squinting his eyes real closed, looking at the law sideways, looking at the plain language of the statute, and he decides that, maybe, it doesn’t mean what it appears to mean. Maybe, just maybe, if you do all of these sorts of hokey pokey dance, you can come up with a justification for why special, counsels can’t be appointed by attorney general. Now, wouldn’t you like to know what his reasoning is? I would, too. I’ve read. I’ve read his dissent, and I’ve read justice, Cannon’s. Justice, judge Cannon’s opinion. She echoes him word for word, in fact, to such a degree that I think we should take a look at a little video that I queued up. If you are familiar with my podcast. You know, I’m a bit of a fan of broadway musicals. see if you recognize this one and what the point is of me showing it. Understandable. Understandable? Yes, it’s perfectly understandable. Comprehensible. Comprehensible. Not habit. Reprehensible. It’s so deep. Defensive. How you feeling? Very frightened. Are you sorry? Are you kidding? What’s your statement? All I say is throw my choo choo, jump the track. I give my life to bring him back. Stay away from jazz and liquor and the men who play for fun. That’s the thought that you came upon me when we both reached for the gun. So, yes, obviously, if you’re familiar with the musical Chicago, that was Richard Gere as the lawyer Billy Flynn and Renee Zellwerger as Roxy Hart. And he is being a ventriloquist, getting her to say exactly what he wants, and then when he’s done with her, he discards her, obviously. I’m thinking that Thomas is Billy, Flynn and Cannon is Roxy Hart, because she is literally just reciting his opinion basically verbatim in hers. And, I’ll give you the highlights. So there. I’m going to say there, because it’s canon Thomas opinion. Their observation is, hey, for 25 years, we had a law that specifically had language, in it that passed by Congress that, ah, allowed for the appointment of special counsels, special investigators, in the Department of Justice. you may recall the whole kenneth star investigation into Bill Clinton, because Bill Clinton lied about a blowjob. Those were the days, right? Weren’t. Aren’t those the days where we get wind that a president lied by. Here’s. Here’s that sort of. This is where we’ve come. Bill Clinton is under oath talking about something, and he’s asked if he had ever had. If. If there is a relationship, if there is a sexual relationship with Monica Lewinsky. And he says, no, there is not. And later on, it turns out there was, as is evidenced by the famous blue dress. The Republicans clutch their pearls and say, oh, my goodness. A sitting president would lie under oath to protect, to hide his infidelity, that we can’t have a president that would do that. We must impeach him. So let’s get a special prosecutor and see if he. He can be convicted of a crime of lying under oath. And his defense, as you may. May know, the famous Bill Clinton defense is. Well, it all depends on what the definition of the word is, is. And that to the. To the layman is like, yeah, that’s ridiculous. To the lawyer, you’re like, you know, he has a point. The question was, is there a relationship between you and Monica Lewinsky, a sexual one? And he said, no, there is not. Was there? Yes. Is there? No. So this goes to a whole side issue. there’s a lot of case law about how much does a witness have a duty to understand or interpret what the question is versus answering it literally? And I will say you have some duty to exercise some. Some reasonableness there, but it’s not a lot. So, anyway, Clinton. Clinton was being a lawyer. He paid the price. But this is where we were as a country that, you know, we were willing to go to impeachment over that, whereas now we have a president who was elected after the tape came out, where he talked about, grab them by the pussy and they’ll let you do anything. You want, because you’re the president. And after he incited an insurrection and the same GOp that wanted, to impeach Clinton for lying about a blowjob, that was, you know, kind of nobody’s business says, no, no, no, we can’t. We can’t impeach Trump. We can’t convict him. At least he got impeached, but we can’t convict him of, an insurrection and of Russia gate and all of these things. No, no, no, no. That’s. That’s. We want a bold, decisive, president, an executive office. So I hope you can smell the, bullshit, which is bullshit scented hypocrisy is what it is. Okay? So that was done under this enabling statute, a separate statute that then Congress, partially because of the Kenneth Star fiasco, let it expire and said, if the attorney general wants to enable this, this was the implication at the time. The attorney general still has the power to, appoint special counsel. So for 25 years, we had this rule, and now we don’t. So one of the Thomas’s points is they let it expire. That means they don’t want special counsels anymore. Well, no, that would mean that they don’t want this particular statute that gave them this particular budget or authority and all that to be the. One of the ways to appoint a special counsel. There’s lots of ways to skin, a cat, as they say in federal regulations, you can do the same thing using different mechanisms. So his logic falls apart there. And, that’s one of the challenges. The other challenge is, hey, the Constitution says that, the Senate has to approve the appointment of officers, and the special counsel is an officer. And the special counsel, in their response to this, says, yes, I am an officer, but I am an inferior officer. The constitution addresses officers and inferior officers and uses them differently. And Thomas doesn’t give a shit about that distinction. He just says section, 515 and 533. That gives the attorney general the power to appoint officials, does not give him the power to appoint officers. That official is not the same word as an officer or an inferior officer. And because it doesn’t say the magic word, therefore, Senate has to approve the appointment. And because Jack Smith was not approved, the special prosecutor in the Trump case, this is an illegal, unconstitutional prosecution he ignores or decides to not really address, because the issue was not presented at the immunity trial. So he doesn’t address the fact that two district courts and a circuit court have had this argument, expressly argued before them. So this is in Ray jury investigation. So regarding a jury investigation, sometimes you get these weird names when it’s just sort of emotion and things like that, and you’re appealing a decision of a judge. this was published in February 26, 2019. So you may remember what’s going on during this time. Before Trump leaves the White House, a bunch of people are being subpoenaed, and they’re refusing to comply with the subpoena. And here we have Andrew, Miller, is appealing an order holding him in contempt for failing to comply with a grand jury, arguing that the special counsel of appointment is unlawful on the appointment under the appointments clause of the Constitution. He argues exactly what Thomas is saying. The, district court says, no, you’re absolutely wrong. They unanimously say everything that I’ve been reading to you. Go look at 28 USC, section 515, 509, 533, 503. But they do a bunch of fives of, And say, it’s obvious what’s going on here. There’s no way that you even have a case. It’s a very short opinion. They dismiss it almost out of hand. Same thing happens in Virginia. The appellate court, in the case, also agrees that special counsel is obviously empowered. So we have this backdrop where all of the courts that have, argued this on the merit so far, three different courts agree that special counsel is obviously enabled by Congress in these, you know, 28 USC 500, 515 and 533, and. And the others at all, as they would say. We have precedent, where Congress just assumed that they’d granted it when they let the special counsel statute expire and then appointed their own special counsels, Republicans and Democrats alike, using 28 USC 500, 515, 533, and others. Both administrations have done this. Right now, technically, that’s irrelevant. They could have done it and nobody challenged it. So it never got to a court, et cetera. But it did get to a court. We’ve cited those three courts, and they all agreed. Now, those courts are inferior to the supreme court, and Justice Thomas is on the supreme court. So he could overrule them. If he could convince people to bring up, to bring this issue up with him, he didn’t. This issue wasn’t argued in the immunity case, so he didn’t have any reason to start talking about this. It wasn’t argued at all. But the reason he wrote his concurring opinion in the immunity case is because he was talking to judge Cannon. He had seen what was going on with the people who didn’t want to comply with subpoenas. They were making this argument. So he signals to cannon, in his opinion. Hey, here’s an outline. Here’s 20 pages of why I think the appointment of a special counsel is unconstitutional and not supported by statute or precedent or everything else I want to ignore. And Cannon comes along and says, we both reach for the gun. Right? She just parrots what he is saying verbatim. So that’s the context of what’s going on here. It’s obviously false. She has this line that she quotes as a famous line in the law that Congress does not hide elephants in mouse holes. She tries to make this argument that all of these sections, this section, 515, 533, and all of those were intended for very, very small officials. And she also makes this weird argument that it only applies once they’ve already been appointed. And there’s been lots of people writing in the news, the, legal junkies, saying, wait a second. You’re talking. That. You’re saying that the appointment of the official can only occur after they’ve already been pointed by other means. And that seems to be part of her argument. She’s not very clear on that. So it’s a bunch of hand waving. It’s a bunch of ignoring precedent. It’s a bunch of ignoring history to put us right back in the same spot that we were in the Nixon White House. We’ve got an executive who is finding any dupe or chump or crony he can find to try to protect him for. Against the crimes that he committed. Thomas is such a chump. Cannon is such a chump. All these people refusing to testify and getting convicted and arguing this. They are chumps. so I hope I’ve explained this to you. This is. Let’s talk about the consequences of this opinion. Right? Does this mean the prosecution’s over? No. This was not a hearing on the merits of the case. She dismissed the case without prejudice. Without prejudice means you can bring this case again. If I dismiss with prejudice, it’s deemed the final outcome. And because in criminal cases, we have a prohibition against what’s called double jeopardy, you can’t be tried for the same crime on the same facts twice. I can’t keep prosecuting you like, I’m going to charge you with theft. The jury says not guilty. Okay? I’m going to. I’m just going to open another case and say, I’m going to charge you with theft again on the same. For the exact same behavior. That’s unconstitutional. So if a judge dismisses a case with prejudice, they’re saying jeopardy has attached, is what that. What that saying is that. That the person was at jeopardy of being convicted. And when jeopardy attaches, and jeopardy usually attaches when a jury is seated, but it. It can attach at different times, depending on the issues that you’re talking about. So, once jeopardy is attached, a judge will probably dismiss with prejudice, which means you cannot bring the case. Again, she did not do that here. She just dismissed the case. So what are the options for the special counsel? One is to appeal, which it sounds like from news, that is breaking right now. They are going to do. So. This will go up to, the circuit court, I think she’s in the 11th circuitous. And the 11th Circuit has reprimanded cannon twice before in this case, where she has made a ruling. The special counsel has appealed. And at no point was anybody objecting to the special counsel during all of this, except, you know, now. and the 11th Circuit has written opinions that basically, if you read between the lines, say Judge Cannon doesn’t know the law, she’s incompetent, they’re scathing opinions, overturning her rulings and directing her to do the opposite of whatever she’s doing. And that has happened twice in the same case. So this will be the third time the 11th Circuit is hearing something from this court, from Cannons court, that they are most likely going to overturn. Now, if that happens, the Trump team will probably appeal. They’ve been signaled by Thomas. Hey, doors open. Come on in, boys. So they would probably appeal at that point, but that’s not really their game, right? Their game is get Cannon to dismiss this case so that it will take too long to get things going again before the election. And that is what the game has always been. And that is what people have been complaining about, about Cannon. This is kind of a mundane case. This is no different than the Ellsberg case. Again, we’re back at where I started, the Pentagon papers. Ellsberg had possession of secret documents without the authority to do so. That’s a clear violation of federal law. Donald Trump had possession of secret documents without authorization to do so. That, too, is a very clear violation of the law. We have had intervening events, like the immunity case, which told us that, if Trump gets back into the Oval Office for the first time ever, the Supreme Court mentioned when they didn’t even have to, in the immunity case, that Trump could pardon himself. So if he gets elected, he will pardon himself for this case, and that will be the end of it. But even so, even if he can’t, pardon himself, they’ve raised the question that he might be immune against this prosecution, one has to ask if secreting away, our national secrets into your bathroom in huge boxes and shipping them to Bedminster is part of an official act. I don’t think it is, because a lot of the criminal activity took place after he was out of office. So I don’t think he gets immunity for this. So his only win here, his only path to victory, is to get elected and pardon himself and pardon everybody who was moving the boxes around and all that, and then it will be dead. And to quote the reporter who heard that, George Bush the senior, had pardoned everybody, Casper Weinberger, in the, Iran Contra affair on Christmas Eve, years after all of it had broken, the conspiracy to cover up the crime in Iran Contra has now been completed. That will be the sentiment when Trump gets elected, and possibly on day one, just without fanfare, issues pardons to himself for anything he’s ever done, ever. That’s how I would write it. If I miss his attorney, I issue a pardon for anything I’ve ever done that violates federal law up until this point. And if I could, I would write it to say, and anything I ever do. But I don’t think you can do prospective, pardons. Who knows? This court might let them, right? They’ve created a king, and they are the hand of the king. So that’s one option, is they’re going to appeal. It looks like, just from the news breaking now that they’re going to do that, another option would be to refile in another district, they filed down in Florida. I have never researched why. I’ve always been curious, but not curious enough to override all the other stories I want to tell. Why they filed there, that seems crazy. Because they knew they were like cannon adjacent, that they might be assigned to canon. Maybe it’s because the 11th circuit is friendly to their philosophy. They could file in DC where the crime, the papers were taken. They could file in New Jersey, the Bedminster location where he hid the papers. They could file in lots of different places. So they might file somewhere else. But I’m betting for now, they won’t. Well, they can’t, because they’re appealing this, so I’m guessing you can’t do that. I’m not familiar with that procedural history. and then they could, they could drop the case. I don’t think they’ll do that. Or they could say, okay, we’re going to file again in the same, same court with the same judge, which would be dumb, but we’ll use a United States attorney to do it. We won’t use a special prosecutor. We’ll just do it. And that’s kind of the point here, is everything they’ve done, they can do. If they just use a us attorney. Even if you assume cannon. Ah. And Thomas’s twisted logic holds, they could do all of this with just a us attorney. The reason. This is the irony of this whole thing. The reason you appoint a special counsel. Why do we do that? For independence. For arm’s length. And what is. What is Tom, what are Thomas and Cannon arguing? the special counsel is too independent. They weren’t appointed by. By the president, approved by the Senate. They’re too independent. So, that is not what. What Congress intended in these enabling, statutes, 28 USC 533. So, yeah, wow, they could do all of this. They could spend the money. They. Cannon and Thomas also point out a budgetary issue, which you usually also make that, hey, the special prosecutor’s office has been spending money. And if they weren’t appointed properly, if they don’t have a budget for this, then that’s, only Congress can authorize the expenditure of money. Therefore, this whole investigation was unconstitutional for the lack of a budget. I don’t think that holds at all. There is a budget, a sort of a slush fund for special prosecutors. you’d have to first find the first argument to be true, that the appointment of the special prosecutor under 28 USC 533 was unconstitutional, which then kind of makes the budgetary thing moot. But then you could say, okay, then if they weren’t properly appointed, then they couldn’t be spending the money. But that’s. That’s sort of a distraction to try to make them, you know, look good. Although, you know, mad respect. As an attorney, you always make every single argument. In case their first one fails, you go to the second best one, right? The old joke is, you know, the guy says, hey, your dog right here just bit me. And the attorney says, well, my dog would never bite anybody. So that’s. Hold, on a second. It reminds me of the old joke where, a guy is standing next to a lawyer, and there’s a dog next to the lawyer, and the dog bites the man. And the man turns to the lawyer, says, your dog just bit me. And the lawyer says, well, my dog’s nice. He would never, never bite me. And also, you, weren’t really hurt. And also, I did. I didn’t see it happen. How do you know it happened? And finally, I don’t own a dog like you make. You make your best arguments all the way up to, like, the least plausible one that can pass what’s called the laugh test. As long as you’re not going to get laughed out of the room, you make the argument for your client, because you know you’re fighting for your client. And if they authorize you to make those arguments, you’re going to make those arguments. So, that’s kind of what cannon and thomas are doing with the budgetary thing. It doesn’t really hold if the first argument doesn’t, isn’t supported. So that’s what’s going on there. So I hope this was useful. I like telling the stories in their full context. You’re going to hear from the press that headlines are going to be loose cannon, things like that. Right? who needs a gun when you’ve got a cannon on your side? Whatever headlines the reporters are going to come up with. my favorite one was indicted on federal, charges. Try this one crazy trick to get out of it. When they’re talking about this case, I’m pretty sure what will happen is they will appeal. The 11th circuit will reverse, cannons, ruling, and then they will appeal to the supreme Court, which will take forever. And then. And Trump will probably get elected, and then he will pardon himself, and then we’ll never hear about this case again. But it is. It is Nixon 2.0. It is, it is, you know, Watergate tapes 2.0. And it is more evidence of what happens when you let bad people hold, even temporarily, the reins of power in your government. Make no mistake, this is the least of our worries when Trump gets reelected. Right? When he gets reelected, we’ve got Project 2025, which we’ve got to do at least one episode. I’m trying to get an attorney who’s familiar with that, to interview with us. we’ve got. Project 2025 explicitly says, hey, we are going to. We’re going to do what the. What the, the White House staff under Nixon said, the enemies list. That is what Project 2025 is. We are going to use the. What did they say it was? The machinery of the federal government to screw our political opponents. That is explicitly in Project 25, in addition to a whole bunch of other stuff. It’s racist, it’s xenophobic, it’s horrible, horrible stuff. The best tweet I saw about it was, I don’t know why the Heritage foundation spent 900 pages writing Project 2025. I think it’s best read in the original for 14 words. If you’re unfamiliar with what that means, 14 words is a shorthand for, nazi propaganda. Edit out this research. I’m going to just read it. It, And this is, if you’re unfamiliar with it, 14 words is a reference to the most popular white supremacist nazi slogan. This is what was chanted by, David Lane, who is a white supremacist of the worst type. People were saying this at Charlottesville, and the slogan is, quote, we must secure the existence of our people and a future for white children. That’s what 14 words mean. So when somebody said, I don’t know why it took. Took 900 pages to write project 2025, I think the original 14 words is a better version. They’re spot on. That’s exactly what project 2025 is. So while this case is important because of the outcome, right, of trying to convict Trump and hold him responsible for his crimes, it is more important as a cautionary, tale. Trump was in. In power for four years, and he appointed judges like Cannon, like Kazmeric. I have episode. I have three episodes coming up about Judge Kazmeric and the damage that he has wrought down in Amarillo. Excuse me. and he did so many more things, and this is what you get. You get judges who are bending over backwards and straining credulity to try to find some argument about, well, you know, they had this law, and it doesn’t explicitly, explicitly say officer and all of this sort of stuff, to try to undo mountains of precedent, mountains of history, and come up with the best outcome for their client. Make no mistake about it, Trump is Judge Eileen Cannons client. And I can’t think of a better way to end the podcast than on that sentiment. Thank you for sticking with me. please check out my website if you want to see more episodes or my YouTube channel, where you’re probably watching this now. I also have. This is on podcast. If you’re listening on a, podcast, that’s great. my website is thecrossexaminer.net, where I have extra, information about each episode. And if you enjoy this content and you want more of it, please like and subscribe and maybe even comment on it. That helps the algorithm spread this information. Right now, I am not, I’m nothing monetizing any of this. You don’t hear ads, anything like that. This is a passion project. It’s my advocacy to try to push back against what I see as one of the biggest threats, existential threats, to the United States of America. So thank you for listening, and I’ll see you next time. Thanks for listening to this episode of the Cross examiner Rocket Docket. If you enjoyed this podcast, please consider liking and subscribing. We’ll see you soon, Sadeena.