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The episode begins with a discussion of Jack Smith's appeal in the Mar-a-Lago case, highlighting the dignified tone of the brief and contrasting it with the more hyperbolic style of Trump's attorneys. The hosts delve into the substance of Smith's appeal, focusing on his argument that Judge Cannon erred in dismissing the case based on the appointment of the special counsel. They discuss the precedent set in the Nixon case and how Smith argues that Judge Cannon's interpretation of the relevant statutes is flawed. The hosts then examine the potential fallout of Judge Cannon's decision if upheld, highlighting Smith's argument that it would cast doubt on longstanding practices within the Department of Justice and across the executive branch. They discuss the implications for numerous appointments throughout the government, including high-ranking positions. The hosts also discuss Jack Smith's decision not to request Judge Cannon's recusal from the case, despite her previous rulings against the government. They explore the reasons behind this decision, including the potential for it to appear political and the desire to focus on winning the legal argument. The episode then moves on to speculate on the upcoming joint filing by Trump's team and Jack Smith's team in the January 6th case, discussing the potential for a mini-trial before the election. They consider the challenges of navigating the Supreme Court's immunity decision and the potential for narrowing the case to focus on charges that are not considered official acts. The hosts then address listener questions about whether a presidential pardon could lift the 14th Amendment prohibition on holding office for those who engaged in insurrection, the potential for the Supreme Court's immunity ruling to remain unchallenged unless another president is charged with a crime, and whether Trump could order the Justice Department to settle his lawsuit against the government for millions of dollars if he were to be re-elected. They discuss the implications of the Supreme Court's immunity ruling on presidential power in civil litigation.
Outlines
Jack Smith's Appeal in the Mar-a-Lago Case
The episode begins with a discussion of Jack Smith's appeal in the Mar-a-Lago case, highlighting the dignified tone of the brief and contrasting it with the more hyperbolic style of Trump's attorneys.
Analyzing Jack Smith's Appeal Arguments
The hosts delve into the substance of Smith's appeal, focusing on his argument that Judge Cannon erred in dismissing the case based on the appointment of the special counsel. They discuss the precedent set in the Nixon case and how Smith argues that Judge Cannon's interpretation of the relevant statutes is flawed.
Collateral Consequences of Judge Cannon's Decision
The hosts examine the potential fallout of Judge Cannon's decision if upheld, highlighting Smith's argument that it would cast doubt on longstanding practices within the Department of Justice and across the executive branch. They discuss the implications for numerous appointments throughout the government, including high-ranking positions.
Jack Smith's Decision Not to Seek Recusal
The hosts discuss Jack Smith's decision not to request Judge Cannon's recusal from the case, despite her previous rulings against the government. They explore the reasons behind this decision, including the potential for it to appear political and the desire to focus on winning the legal argument.
Speculating on the January 6th Case
The hosts speculate on the upcoming joint filing by Trump's team and Jack Smith's team in the January 6th case, discussing the potential for a mini-trial before the election. They consider the challenges of navigating the Supreme Court's immunity decision and the potential for narrowing the case to focus on charges that are not considered official acts.
Listener Questions: Presidential Pardons and the 14th Amendment
The hosts address listener questions about whether a presidential pardon could lift the 14th Amendment prohibition on holding office for those who engaged in insurrection, the potential for the Supreme Court's immunity ruling to remain unchallenged unless another president is charged with a crime, and whether Trump could order the Justice Department to settle his lawsuit against the government for millions of dollars if he were to be re-elected. They discuss the implications of the Supreme Court's immunity ruling on presidential power in civil litigation.
Keywords
Appointments Clause
A clause in the U.S. Constitution that outlines the process for appointing federal officials, including the role of the President and the Senate. It has been a subject of debate in recent years, particularly in relation to the appointment of special counsels.
Dicta
Statements made by a court that are not essential to the decision in a case. These statements are not binding precedent, but they can be persuasive and influential in future cases.
Ultra Vires
Latin for \"beyond the powers,\" referring to an act that is outside the legal authority of a person or entity. In the context of the podcast, it refers to the argument that the appointment of a special counsel from outside the Department of Justice was ultra vires.
Official Act
An act performed by a government official in their official capacity. The Supreme Court's immunity ruling has raised questions about what constitutes an official act, particularly in relation to presidential actions related to investigations and prosecutions.
Recusal
The act of a judge withdrawing from a case due to a conflict of interest or bias. The hosts discuss the decision of Jack Smith not to seek Judge Cannon's recusal, despite her previous rulings against the government.
Insurrection Clause
A clause in the 14th Amendment that prohibits anyone who has engaged in insurrection or rebellion against the Constitution from holding office in the United States. The hosts discuss the implications of this clause for former President Trump and the potential for a presidential pardon.
Past Participle
A verb form that indicates a completed action. The hosts discuss Judge Cannon's reliance on a past participle argument in her interpretation of the relevant statutes, which Smith argues is flawed.
Mini-Trial
A shortened trial that focuses on specific issues or evidence. The hosts speculate on the possibility of a mini-trial in the January 6th case, but note the challenges of navigating the Supreme Court's immunity decision.
Q&A
Can the 14th Amendment prohibition under the insurrection clause be lifted by a presidential pardon?
No, the 14th Amendment disqualification is not a criminal conviction and therefore cannot be pardoned. However, Congress could remove the disability through a two-thirds vote.
Do we now have a catch-22 with the immunity ruling where a future Supreme Court will only get to reconsider immunity if another president is charged with a crime?
It is possible that the immunity ruling will remain unchallenged unless another president is charged with a crime, but there are potential scenarios where the issue could be revisited, such as a manufactured challenge to an investigation or a related case that allows the court to revisit the ruling.
If Trump were to file his lawsuit against the United States and were to become president again, could he order the Justice Department to settle the lawsuit for millions of dollars and put taxpayer money in his pocket legally?
It is possible that Trump could order the Justice Department to settle the lawsuit, as the Supreme Court's immunity ruling suggests that communications between the president and the Department of Justice are official acts. However, settlements would still need to be approved by a court, and a judge might intervene to prevent such a settlement.
Show Notes
In an attempt to revive the Mar-a-Lago classified documents case thrown out by Judge Aileen Cannon last month, Special Counsel Jack Smith has now filed a brief with the U.S. Court of Appeals, a day early no less. MSNBC legal analysts Andrew Weissmann and Mary McCord discuss Jack Smith’s arguments in the brief asserting that Judge Cannon had wrongfully ruled the special counsel had been appointed illegally. Then, looking ahead at proposals in the January 6 case expected to be filed later this week. And we take some of your listener questions!
Following this recording, it was reported that Jack Smith revised his indictment in the January 6th case to address the Supreme Court's ruling on immunity. A procedural filing is still expected this coming Friday, August 30th.
Table of contents
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