CONFIRMING THAT JUDGE CANNON’S DISMISSAL OF THE FEDERAL FLORIDA PROSECUTION IS GOOD NEWS

Gang,

My twentieth Contemplating Coup Convictions (CCC ) edition, posted yesterday morning, ended this way:

Under Heading III.D in my nineteenth CCC newsletter edition, I pointed out that Special Counsel Smith has been waiting for Cannon to finally make a ruling—especially an “exceptionally wrong” ruling—which would enable the U.S. Court of Appeals for the Eleventh Circuit not only to reverse her ruling, but to remove her from the case. Depending upon the reasoning she used, and the authority she relied upon, in her decision [yesterday], this could well turn out to be that ruling.

I’ll have more to say on the subject as the reporting becomes more detailed.

Well, I now have more to say.

First, here is Cannon’s decision.

Second, in his initial “Talking Feds” YouTube video posted yesterday about Cannon’s decision, entitled “Cannon Releases SHOCKING BOMBSHELL Ruling,” Harry Litman closely examined the decision. He confirmed that the decision is indeed “exceptionally wrong,” without using those exact words that I’ve been using. His view of the decision has been echoed by others. (See, e.g., this.)

Third, a central aspect of the decision, and of Litman’s criticism of the decision, concerns the question whether a certain passage in the U.S. Supreme Court’s Watergate tapes opinion in United States v. Nixon (1979) constitutes dictum or a holding. That passage can be found on pages 694 and 695 of that opinion. Cannon’s discussion of that passage appears on pages 53 through 67 of her decision. I discussed the difference between holdings and dicta under Heading VII.A in my fifth CCC newsletter edition (posted on March 17).

Fourth, in his follow-up Talking Feds video posted yesterday about Cannon’s decision, entitled “What Comes NEXT After Cannon's OUTRAGEOUS Ruling?,” Litman confirmed what I had written yesterday in the twentieth CCC edition: that her decision yesterday could finally give Smith the chance he has been waiting for to get Cannon knocked off the case.

Fifth, if the U.S. Court of Appeals for the Eleventh Circuit were to affirm Cannon’s ruling—something Litman said yesterday would be unlikely to happen—then the Supreme Court would almost certainly agree to review that affirmance. That is so for multiple reasons.

To begin with, as indicated above, in the crucial passage in the Nixon case, the Supreme Court indicated that Cannon’s position is incorrect. Also, the Eleventh Circuit’s affirming decision would create a conflict with the position taken by the D.C. Circuit in a number of past cases. Moreover, the federal D.C. prosecution against Trump would have to be dismissed if Cannon’s position were correct. Beyond all that, the question whether special counsels can exist without a presidential appointment or additional Congressional input is a very important one.

Sixth, if the Eleventh Circuit were to reverse Cannon’s decision, the Supreme Court would be less likely to agree to review the case, primarily because there would be no conflict among the federal circuit courts on the issue.

Seventh, if the Eleventh Circuit were to reverse Cannon’s decision and remove her from the case--assuming that in his appeal, Special Counsel Smith asked for her removal--then that would be wonderful.

Eighth, if the Eleventh Circuit were to reverse Cannon’s decision, but either Smith did not ask for Cannon’s removal from the case or the circuit court declined to remove her, then we are generally back where we were before Cannon issued yesterday’s decision. However, if the circuit court were to decline to remove Cannon from the case, the odds of Smith’s having her removed at a later time could increase or decrease, depending upon the reasoning offered by the circuit court in support of its declination.

Ninth, and last, in his follow-up Talking Feds post yesterday on Cannon’s decision, Litman opined that Cannon probably opted to issue that decision before the election based on her belief that her doing so likely would help Trump’s chances of being reelected. Surprisingly, Litman did not point out that her choice of the specific date for issuing the decision is considerably more suspect, as it was issued on the first day of the Republican National Convention.

Be seeing you,

Brian