Legal Expert Predicts 11th Circuit Will Reverse Decision From Judge Cannon To Dismiss Trump Case

3 months ago

Neama Rahmani, President of West Coast Trial Lawyers, joined Forbes Senior Legal Editor Liane Jackson on "Forbes Newsroom" to discuss Judge Aileen Cannon.

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Transcript

00:00The 11th circuit has not been a fan of her previous rulings. Do you feel like this also

00:05opens up an opportunity, as some have said, for special counsel to ask for a substitution of

00:10the judge in this case to replace her? I wouldn't be surprised.

00:14Cannon's already been reversed twice by the 11th circuit, which does seem conservative.

00:18I would expect them to reverse her again, either a three-judge panel or for a petition for a

00:25re-hearing on Bonk, which would be the entire 11th circuit. There's really no precedent for

00:30what she's done. And even in the unlikely scenario where the 11th circuit affirms for ruling,

00:36now we have a circuit split and the Supreme Court would have to step in

00:40near the case because there are constitutional consequences for what she said.

00:45And ultimately, you can't have some circuits saying that the Department of Special Counsel

00:50are unconstitutional, others that allow prosecutions to move forward.

00:55In this case, Trump was indicted on 40 federal felony charges for allegedly withholding national

01:01security documents, keeping them at his home in Mar-a-Lago, bringing them back to his private

01:06residence and obstructing the investigation after that. If Judge Cannon's ruling were to

01:12be affirmed, which most observers feel that's not going to be the case, but if that were to happen,

01:17stranger things have been happening in the courts these days. What does this say for the future of

01:23presidential immunity? We've seen a lot of cases that are testing the limits of executive power,

01:27potentially abuse of power, that you're able to just take classified documents,

01:32allegedly in this case, and do sort of whatever you want without consequences.

01:38Well, it's a huge issue and they're two real separate issues, right? Presidential immunity,

01:41the Supreme Court gave a very broad definition of what constitutes an official act, which would be

01:48subject to immunity versus a personal one, which would allow for a criminal prosecution.

01:53But I think this is just an entirely separate issue altogether. We're talking about the appointment of

01:59a special counsel, which should be appointed in a case where the president or the attorney general

02:04may have a conflict of interest. Let's not forget, I mean, this is the Justice Department

02:08that's prosecuting Donald Trump or the Justice Department that's prosecuting Hunter Biden.

02:13So if we're not going to allow for special counsel appointment in these types of cases,

02:18we're going to rely on local U.S. attorneys who are appointed by the president,

02:23confirmed by the Senate, and they may be aligned with the president, which may create a problem.

02:30And also this ruling does come after Clarence Thomas, Supreme Court Justice Clarence Thomas

02:38made sort of an allusion to the fact that that the special counsel may be inappropriately

02:45appointed. Do you feel like Judge Cannon took a cue from that and the timing of this in general?

02:53I agree that Judge Cannon took a cue from Justice Thomas. This is a fringe argument.

02:59Not many folks would entertain it. But Justice Thomas, in one of his opinions, did say that

03:06the appointment of special counsel may be unconstitutional. I think Judge Cannon took

03:10that argument, ran with it. Certainly the defense did in their briefing and their arguments. And I

03:15think that's something that ultimately, if you poll legal scholars, if you poll judges,

03:21I don't think many would agree with this ruling. I'm currently teaching. I'm currently helping run

03:27a program at my alma mater, Harvard Law School, and talking to professors here when the decision

03:32came out this morning, they were shocked. This is not a majority opinion. Whether you're talking

03:38about Judge Cannon or Justice Thomas, there's not going to be a lot of judges that agree with it.

Legal Expert Predicts 11th Circuit Will Reverse Decision From Judge Cannon To Dismiss Trump Case

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