The Law of the Case (II) and the Next Steps

United States v. Trump, Case No. 9:23-cr-80101-AMC, 2024 WL 3404555, 2024 U.S. Dist. LEXIS 123552, --- F. Supp. 3d ---- (S.D. Fla. July 15, 2024) (Cannon, J.), ECF No. 672, <https://tinyurl.com/hk4z7e76>, <https://www.courtlistener.com/docket/67490070/united-states-v-trump/>, appeal dismissed in regard to Defendant Trump (11th Cir. Nov. 26, 2024), ECF No. 81, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>.

On November 25, 2024, Special Counsel Jack Smith filed a motion to dismiss in both the 11th Circuit case and in the United States District Court for the District of Columbia case. See ECF No. 79 (motion); ECF No. 81 (motion granted). Judge Cannon’s Southern District of Florida decision—dismissing the case based on Smith’s unconstitutional appointment and ultra vires appropriations made to Smith—is now the law of the case. It is good, persuasive precedent—albeit, not binding precedent. If the DOJ/Special Counsel had any inhibition relating to dismissal and leaving Judge Cannon’s final order and opinion as good, persuasive case law, then that inhibition now appears to be long gone.

Special Counsel Smith has had a full and fair opportunity to prove—before the trial court and now on appeal—that he was lawfully appointed and lawfully compensated. He failed to establish those specific points in court. As a result, the DOJ may and (in my opinion) should sue for return of illegal salary paid by the U.S. Treasury to Smith and his staff (that is, those not otherwise employed at DOJ). Special Counsel Smith failed to prove that the documents seized by the FBI at Mar-a-Lago belong to the U.S. government or any of its agencies. Trump should move, and if necessary sue, for return of all his files taken by the FBI at Mar-a-Lago.

Seth Barrett Tillman, ‘The Law of the Case (II) and the Next Steps,’ New Reform Club (Nov. 25, 2024, 15:13 PM), <https://reformclub.blogspot.com/2024/11/the-law-of-case-ii.html>; 

**Of course, the above assumes that the 11th Circuit dismisses, in short order, as requested by the Special Counsel. (Defendant Trump did not object to the Special Counsel’s motion to dismiss.)