January 19, 2024
There are four major legal actions underway attempting to drive Donald Trump off ballots and into jail. When we parse the left-wing legalese and talking points, they translate into one thing: The Left is petrified that Donald Trump will win, and, when he wins, he’ll go through the DC Establishment like a firestorm. In a manner of speaking, all that will remain will bear a strong resemblance to the town of Lahaina. Rather than walking through hundreds of pages of Court decisions, legal pleadings, and law review articles, it’s time for the Final Four Countdown!
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Number Four:
I’ve dealt with the Colorado case at length here and here, so I’ll let you read it for yourself. The short answer is to expect a 9-0 ruling in favor of The Donald from the Supreme Court. You can’t be guilty of a crime that can’t be defined, such as “insurrection,” when it is removed from the clash of armies that gave rise to the 14th Amendment. Defining the crime and prescribing how to handle it is reserved to Congress in Section 5, so Colorado doesn’t get a say. (Maine is SOL as well.) And finally, the President is not an officer of the US. The grammar of the Constitution expressly defines “officers” as people appointed by the President. Section 3 of the 14th Amendment doesn’t apply to him.
Number Three:
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The Georgia case is a Flagrant 2 foul. The basis for this assessment is rather simple. Everything Trump is accused of doing was part of his duty under the Take Care clause of the Constitution. As Paul Harvey used to say, “Now for the rest of the story.” It will be a bit “instering,” as my brother says.
Fulton County DA Fani Willis was required by Georgia law to present her plan to hire “special” prosecutor Nathan Wade to the Board of County Commissioners for approval. She did not. She hired her lover, an attorney to be sure, but still a private citizen, contrary to law. This legally excludes him from participating in Grand Jury proceedings, discovery depositions, and the like. We might be inclined to excuse him from knowing her duties, but he failed in his own by not filing his oath paperwork with the Court in a timely manner. Somehow, he remembered that simple task a month after the Trump indictment dropped.
Because SP Wade was not lawfully appointed, everything he touched is tainted. It’s like a clinker in the punch bowl. There’s no way to clean things up. It must be thrown out. Legally, it’s an “irreparable defect.” Every document, interview, and indictment that Wade touched must be excluded from any trial, ever. Since that’s the whole case, there’s nothing left for another prosecutor to use against 45.
Number Two:
This is going to be a case of déjà vu all over again. In the J6 case brought by Jack Smith, former Attorney General Ed Meese and law professors Steven Calabresi and Gary Lawson filed an amicus curiae (friend of the Court) brief detailing a major defect that’s almost a carbon copy of the Georgia case. Not only that, the DC Court asked questions related to the brief, so they were interested. I’ll let the amici speak for themselves.
Jack Smith does not have the authority to conduct the underlying prosecution. Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices. Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria.
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Jack Smith is, like Nathan Wade, an attorney. At the time of his appointment, he was a private citizen. Unlike the Georgia case, AG Garland did not need to present Smith’s appointment for approval. Rather, he needed Congress to pass a law creating Smith’s office. Then, the President would have to nominate him for that office. Without either of those steps, Jack Smith is not an officer of the federal government. An alternate would be for the new law to allow the Attorney General to make the appointment, but that didn’t happen either.
Under current law, all the AG could do would be to task a sitting US Attorney with the job, such as with John Huber and John Durham. Instead, Merrick Garland did a Fani Willis and skated around the Constitution. Now, the amicus brief has him by the short hairs.
Just to complete the hat trick, Smith made the same stupid mistake that Wade made in Georgia. His paperwork was completed after the Mar-a-Lago indictment was made public under his signature. Just like Wade, everything Smith touched in the J6 case is now Fruit of the Poisonous Tree and cannot be lawfully used against the President. As the amici conclude:
Not properly clothed in the authority of the federal government, Smith is a modern example of the naked emperor. Illegally appointed, he has no more authority to represent the United States in this Court, or in the underlying prosecution, than Tom Brady, Warren Buffett, or Beyoncé. That fact is sufficient to sink Smith’s prosecution of Defendant and the Court should vacate the decision below and order that the prosecution be dismissed.
And now for Number One:
You can be forgiven if this is a bit anticlimactic because the outcome is now so obvious. Jack Smith wasn’t involved in the Mar-a-Lago raid, so the defects in that warrant may have to be tackled a different way. But he did convene the Grand Jury, which a private citizen like Smith has no lawful power to do. He had his fingers in a pot full of depositions, evidence analysis, and so on, tainting the lot. As we noted earlier, this taint can’t be washed off, painted over, or in any way purified. Everything he touched must be thrown out.
The fun part of this is that Trump’s lawyers will almost certainly make the appropriate motions within a couple of days after Smith gets canned by the DC Court of Appeals. Jack Smith will then have no standing to even appear in court in Florida to defend himself, having been kicked to the curb as a scofflaw. Judge Cannon will have a strong basis for summary dismissal of the Mar-a-Lago case and a protective order against the use of any of the evidence in any further prosecution.
How sweet it is!
Image: Donald Trump (edited) by Gage Skidmore. CC BY-SA 2.0.
Ted Noel MD is a retired Anesthesiologist/Intensivist who podcasts and posts on social media as DoctorTed and @vidzette. His Doctor Ted’s Prescription podcasts are available on many podcast channels.
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