Legal Legend Laurence Tribe and Celebrity Lawyer George Conway Escalate Effort To Remove Judge From Jack Smith’s Prosecution of Trump

A new brief from a roster of blue chip lawyers arguing that Judge Aileen Cannon ought to be reversed and removed in her Mar-a-Lago case against President Trump brings into focus the growing push — an “Avengers” style effort — to oust the Florida jurist and clear the path to a conviction of the 45th president.The filing, a so-called amicus or “friend of the court” brief, is the second in short order to hit the docket of the 11th United States Appeals Circuit and make the case that Judge Cannon erred so badly as to merit reassignment. The first was written by a liberal legal group, Citizens for Responsibility and Ethics in Washington, or “CREW.”That organization earlier this year pushed to bar Trump, as an insurrectionist, from the office of the president under Section Three of the 14th Amendment. It lost unanimously at the Supreme Court. The confluence of the submissions point to an escalating effort to persuade the appellate court to oust Judge Cannon.Mr. Smith has submitted his own appeal to the 11th Circuit, though he has not asked the tribunal to take her off the case. The circuit riders, though, can act without him. Federal law allows for a judge to be removed if she has “engaged in conduct that gives rise to the appearance of . . . a lack of impartiality in the mind of a reasonable member of the public.” This amicus filing bears the imprimatur of two foes of Trump. The liberal legal lion Laurence Tribe, who taught the Constitution at Harvard for more than 50 years, supported the former president’s disqualification from the office of the president on the basis of Section Three of the 14th Amendment, a cause championed by CREW. Another signatory, the lawyer George Conway III, is a prominent critic of Trump’s on television and podcasts.Messrs. Tribe and Conway are joined by 16 other amici in arguing that Judge Cannon’s decision that Mr. Smith was unconstitutionally appointed is wrong and her dismissal of the charges therefore crosswise with the law. If she is reversed — she also dismissed the charges against Trump — but not removed, the case would return to her South Florida courtroom. Trump could appeal such a ruling to the Supreme Court.Judge Cannon reasoned that Mr. Smith, who is prosecuting both this case and the January 6 one, lacked the ballast of legitimate authority. The special counsel, who was prosecuting war crimes at the Hague when he was hired by Attorney General Garland, was never confirmed by the Senate. Judge Cannon determined that General Garland did not have the authority to appoint him. She writes that “there can be no valid officer without a valid office.”This brief, though, argues that the “Constitution, the statutes enacted by Congress to exercise the power the Constitution confers, and the Attorney General’s appointment … unmistakably establish the lawfulness of Special Counsel Smith’s appointment.” They cite the case of United States v. Nixon, which appeared to rule that the attorney general can hire subordinate prosecutors. Judge Cannon disputes that reading, and deems that section of the holding to be non-binding, or dictum. The brief signed by Messrs. Tribe and Conway tells the 11th Circuit that Judge Cannon’s “decision rejecting the lawfulness of the Special Counsel’s appointment, in clear defiance of binding Supreme Court precedent and the plain text of Congress’s statutes, falls far outside the range of reasonable judicial decision making.” They point to a “pattern of unsupportable decisions” and her “inexplicable handling of procedural matters” to argue for reassignment to “another district judge on remand.” Amicus curiae, who as non-parties usually mount their arguments on a case’s periphery, have made their mark on this one. The contention that Mr. Smith’s appointment violated the Constitution’s Appointments Clause and that his case ought to be dismissed was one first ventilated by amici before the Supreme Court and in the Southern District of Florida. They comprised, among others, Attorneys General Meese and Mukasey. Judge Cannon found the positions staked out by these non-parties so convincing that she allowed some of them to make oral arguments in her courtroom, a rare occurrence. Lawyers representing Generals Meese and Mukasey, as well as a law professor, Seth Barrett Tillman, were persuasive enough that she came to see Mr. Smith’s appointment, and his case, as unsustainable. Now, Messrs. Tribe and Conway aim to replicate their success in removing a key figure from this case.

Legal Legend Laurence Tribe and Celebrity Lawyer George Conway Escalate Effort To Remove Judge From Jack Smith’s Prosecution of Trump

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