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   Heidi Li Feldman (heidilifeldman@mastodon.social)'s status on Tuesday, 27-Aug-2024 07:43:32 JST Heidi Li Feldman

   Jack Smith today formally appealed Judge Aileen Cannon’s dismissal of the United States suit against Donald Trump for wrongfully keeping national defense materials and obstructing the investigation of his wrongful conduct. https://www.cbsnews.com/news/special-counsel-appeals-court-trump-documents-case/ I thought it might be useful to put the case in the broader context of the fight to hold the U.S. President - whoever holds the office - accountable to rule of law. 1/

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     Heidi Li Feldman (heidilifeldman@mastodon.social)'s status on Tuesday, 27-Aug-2024 07:44:02 JST Heidi Li Feldman

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     Nixon tried to have the subpoena quashed, arguing among other things, that the federal court was not allowed to decide the matter. Nixon’s position was that DOJ, an executive branch agency under the supervision, was fighting an “intra-branch” battle against the White House. According to Nixon, the special prosecutor was simply an executive branch functionary; Nixon as chief executive did not have to answer to the special prosecutor in court. 5/

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     Heidi Li Feldman (heidilifeldman@mastodon.social)'s status on Tuesday, 27-Aug-2024 07:44:02 JST Heidi Li Feldman

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     To use a technical term, Nixon argued that the fight between the special prosecutor and him was not “justiciable,” not the sort of conflict federal courts could properly hear. A justiciability challenge is threshold. If Nixon was correct, the trial court would have to dismiss the subpoena, regardless of the merits of its propriety: the court would simply have had no authority to consider how the President responded to a special prosecutor. 6/

     Tim Chambers repeated this.
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     Heidi Li Feldman (heidilifeldman@mastodon.social)'s status on Tuesday, 27-Aug-2024 07:44:02 JST Heidi Li Feldman

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     Note the implications of Nixon’s position. If the President is the final arbiter of the reach of a DOJ special counsel’s investigation of the President, the special counsel has no independence from the President. The President can simply decide he is not answerable to a criminal investigation or trial conducted by the DOJ. 7/

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     Heidi Li Feldman (heidilifeldman@mastodon.social)'s status on Tuesday, 27-Aug-2024 07:44:03 JST Heidi Li Feldman

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     The first Republican President who tried to escape federal prosecution for criminal conduct was Richard Nixon. To understand Jack Smith’s rebuttal of Aileen Cannon, you have to understand the fight in U.S. v. Nixon and the significance of Judge Cannon’s refusal to treat it as precedent for permitting the U.S. Attorney General to appoint a special counsel to investigate and prosecute a President for criminal conduct. 2/

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     Heidi Li Feldman (heidilifeldman@mastodon.social)'s status on Tuesday, 27-Aug-2024 07:44:03 JST Heidi Li Feldman

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     As a result of their effort to steal materials from the office of the Democratic National Committee, and their subsequent attempt to cover this up, Richard Nixon and officials in his administration were investigated by the U.S. Department of Justice. A grand jury indicted Nixon administration officials and named Nixon an unindicted co-conspirator in an effort to defraud the United States and to obstruct justice. 3/

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     Heidi Li Feldman (heidilifeldman@mastodon.social)'s status on Tuesday, 27-Aug-2024 07:44:03 JST Heidi Li Feldman

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     The indictment was won by a special prosecutor (the term then used for the special counsel in the case). To continue the pre-trial investigation, the special prosecutor subpoenaed materials from Nixon, notably Oval Office tape recordings, which contained evidence of what the co-conspirators had discussed about the break-in and cover-up. 4/