Posts Made By: James Brown

Originally Posted by Jim Moscheck

I heard Adam Schiff has called for him to step down. If he does this could be one wild ride the next few months.

The most senior Democratic leaders, Pelosi, Schumer, Jeffries, and even Obama have apparently told Biden that he cannot win, and that he should step down. As of this morning, Biden has ignored them all.

Originally Posted by Jim Moscheck

Seems like getting covid, again, while in your 80's would be a good reason/excuse to drop out. Heck, I knew at age 64 I couldn't do my job the way I would have liked. Mentally I am okay and could probably ace the same test trump took LOL, but even there I am diminished from just a few years ago. Physically my hands are pretty much shot as far as using them to make a living which I did for 45 years. Since I stopped working the pain in my right hand is now only a dull ache as opposed to the much worse pain I used to have all of the time when wielding a knife.

Are you able to play guitar again?  I hope so.  I recall that the injury really hosed your fret hand.

Originally Posted by Jim Moscheck

Seems like getting covid, again, while in your 80's would be a good reason/excuse to drop out. Heck, I knew at age 64 I couldn't do my job the way I would have liked. Mentally I am okay and could probably ace the same test trump took LOL, but even there I am diminished from just a few years ago. Physically my hands are pretty much shot as far as using them to make a living which I did for 45 years. Since I stopped working the pain in my right hand is now only a dull ache as opposed to the much worse pain I used to have all of the time when wielding a knife.

I did patent prosecution up to this January at 62 years old.  Patent prosecution (getting patents issued for engineers and inventors) can be mentally grueling with lots of technical writing and technical reading in emerging technologies. 

I think my work product was as good at the end as it ever was, and the years of experience really helped.  Also, I was supervising/mentoring a lot rather than primarily writing my own stuff.  That said, when I was writing or really digging into the weeds of a new technology and senior patents, I felt my mental stamina was diminished.  I could not crank mentally for 8-10 hours like I once could.  At 62 I felt like I had definitely lost a step in the stamina department.

Originally Posted by Brian McFarland

I get where Rod is coming from.  Trump stored classified documents in his hotel.  Lied about having them, then refused to return them. Every one of these things is illegal and would land any of the rest of us in jail.

I guarantee you, everyone who has ever worked in an environment that involved the handling of classified material is scratching collective their heads about this.

Of course!  I would love to see Clinton, Biden and Trump in jail for their mishandling of classified information.  I am surprised you wrote this post though.  

Guilt or innocence is not the legal issue!   

Jack Smith is a private citizen appointed by the Attorney General as a special prosecutor.  The Constitution has an appointment clause covering the Executive branch.  If the appointee is a "principal officer" the appointment must be approved by Congress.  If the appointee is an "inferior officer" the appointment must be made pursuant to a statute authorizing the appointment or approved by Congress.

Smith was not approved by Congress.  The judge determined that he is an "inferior officer" under the appointments clause, she also determined that there is no statute authorizing the appointment of a private citizen as special prosecutor with all the authority of a US Attorney.   So, Smith's appointment has been determined to be unconstitutional.   The critical legal issue of whether some tangentially related statutes give Garland implicit authority to appoint Smith will be reviewed upon appeal.   Also, there are strong arguments that Smith is a principal officer requiring Congressional approval in any case.  So the appeal will be interesting.   Also probably short-lived when Trump is elected.  

So, I hope everyone understands a key point here.  Trump could be guilty as sin and that does not excuse an unconstitutional special prosecutor appointment.   This is a critical separation of powers question, and like the immunity decision is a lot bigger than the Trump cases.

Back to me and you, we would have been prosecuted by a US Attorney or JAG officer (an employee of the government) who is unambiguously authorized by statute to prosecute federal crimes.   We would be convicted and do time.

If you want to speculate why Garland chose to go outside of his staff and bring in Smith, I have some thoughts.   Clearly Garland did not see this issue coming, but it is not brand new.  Conservative legal scholars have been arguing that the authority to appoint private citizens as special prosecutors expired 20 years ago when the Watergate era independent counsel act expired. 

Jim

Originally Posted by Brian McFarland

I get where Rod is coming from.  Trump stored classified documents in his hotel.  Lied about having them, then refused to return them. Every one of these things is illegal and would land any of the rest of us in jail.

I guarantee you, everyone who has ever worked in an environment that involved the handling of classified material is scratching collective their heads about this.

Same as when they gave Clinton a pass.  I recall the sailor who did jail time back then for texting a photo that showed the control panel on a Submarine in the background.

Even so, I hope you and everyone else understands the legal issue, which has absolutely nothing to do with guilt or innocence.   I get it that it is frustrating when a criminal gets off on a "technicality."  But this is no mere technicality.  It is a clause in the Constitution that is critical to the separation of powers.   

Garland should have appointed a US Attorney to investigate this case and prosecute if he or she saw fit.  Garland chose not to for his own political reasons (I believe).  Now the case is at least delayed, and the people who really care about "justice" only if it can be delivered before the election are upset.

I am frustrates as hell at the punditry who have politicized a very defensible, although conservative, judicial ruling.  Adherence to the Constitution and the integrity of the criminal justice system are far more important than getting Trump before the election.

Originally Posted by Rod Kaufman

Reports have been coming in that Trump's ear was hit by glass shards after a bullet hit his teleprompter and hence the real reason for no bonafide medical report:

https://www.youtube.com/watch?v=w2Gn4Iw9eH4&t=408s

And this matters why?  Have you read about the security s**t show?  The NYT had an in depth piece yesterday.  I can't believe the head of the Secret Service still has her job.

Originally Posted by Rod Kaufman

Reports have been coming in that Trump's ear was hit by glass shards after a bullet hit his teleprompter and hence the real reason for no bonafide medical report:

https://www.youtube.com/watch?v=w2Gn4Iw9eH4&t=408s

Also, you are fussing over whether Trump was actually hit by the bullet of a shard?  Seems to me that a better thing to fuss over would be a long overdue cognitive test of the Commander in Chief and some transparency about his actual mental state.

Originally Posted by Rod Kaufman

Actually, Cannon's opinion is reportedly, as per Litman, a cut and paste of arguments presented by Citizen's United from her rightwing outside circus that she invited into her court of which she cobbled together with those of Clarence Thomas. None of which makes them correct.

That said, Garland is reportedly appealing the "principle" of his ability to appoint a special prosecutor which is done, of course, to demonstrate impartiality and objectivity.
Of course, that noble ideal has been destroyed by Trump and company with his outrageous rhetoric about Jack Smith, Garland and it's all Biden's doing. The latter is another example of how Biden is supposedly some sort of evil mastermind while, at the same time, being feeble and incoherent...

Assuming the part I bolded is correct, what is wrong with a judge being persuaded by one of the Amicus briefs filed in a case?  It happens every day.

Originally Posted by Rod Kaufman

Actually, Cannon's opinion is reportedly, as per Litman, a cut and paste of arguments presented by Citizen's United from her rightwing outside circus that she invited into her court of which she cobbled together with those of Clarence Thomas. None of which makes them correct.

That said, Garland is reportedly appealing the "principle" of his ability to appoint a special prosecutor which is done, of course, to demonstrate impartiality and objectivity.
Of course, that noble ideal has been destroyed by Trump and company with his outrageous rhetoric about Jack Smith, Garland and it's all Biden's doing. The latter is another example of how Biden is supposedly some sort of evil mastermind while, at the same time, being feeble and incoherent...

Garland unambiguously has the ability to appoint special counsel according to the following framework:

a.  He appoints a DOJ employee
b.  He appoints an outside attorney, and Congress approves same
c.  He appoints an outside attorney pursuant to an authorizing statute already passed by Congress.

His appeal will focus on C.   Trump's attorneys will argue that there is no authorizing statute and also argue that Smith is a principal agent under the Appointings Clause, requiring B.  In any case, Garland could appoint a proper unimpeachable special counsel under A.

I personally do not think one appoints Jack Smith because he is trying to be "impartial and objective."  Jack Smith has a well deserved reputation you know.  Mueller was appointed to be (and he was) impartial and objective.

Originally Posted by Rod Kaufman

"In an unusual move, she allowed three outside lawyers, including two who sided with Trump, to argue during a court hearing focused on Trump's challenge to Smith's appointment."

"Conservative Supreme Court Justice Clarence Thomas provided a boost to Trump's challenge to the special counsel. In an opinion agreeing with the court's decision to grant Trump broad immunity, Thomas questioned whether Smith's appointment was lawful, using similar arguments to those made by Trump's lawyers."

"Garland appointed Smith, a public corruption and international war crimes prosecutor, to give investigations into Trump a degree of independence from the Justice Department under Biden's administration."


https://www.usnews.com/news/top-news/articles/2024-07-15/judge-tosses-trump-documents-case-ruling-prosecutor-unlawfully-appointed

I do not fault Cannon for requesting Amicus Briefs.  It is not unusual to request outside briefing when the issue of law at hand is novel, whatever your source may say.   The Appointments Clause issue is indeed unusual, and is a matter of first impression in the 11th Circuit.

We'll just disagree on why Garland went with Jack Smith.  I am not faulting Garland by the way.  I am only saying he had options that would not have raised the Appointments Clause issue.