Thread by @KatiePhang

MAL classified docs:

- Matthew Seligman, an attorney, is arguing before Judge Cannon on behalf of Special Counsel Jack Smith's appointment.

- Seligman: the special counsel meets the definition of an inferior officer, allowing the attorney general to appoint them. He pointed to Supreme Court precedent upholding independent counsels - which are if anything more independent than special counsels - as inferior officers.

- Seligman: the most important factor in determining whether an official is an inferior officer is whether the officer has a superior.

“The order appointing Jack Smith could just be changed” by Garland, Seligman said, giving him sufficient oversight, though he conceded when pressed by Judge Cannon that the “day to day supervision of litigation is not there.”

Nonetheless, the regulations still provide guidelines for when the AG can overrule decisions made by the special counsel.

- Josh Blackman argues on behalf of Landmark Legal Foundation in support of Trump’s position.

- Blackman: Between AG Garland not giving Smith a specific set of regulations to abide by as the Nixon AG did, as well as the Nixon AG “illegally” allowing Congress the power to remove the special counsel, Blackman says the prosecution’s reliance on Nixon is weakened.
- Blackman says “Nixon is persuasive but not binding,” and holds no bearings on the merit of the case.

- Blackman argues that Smith's temporary role creates no accountability. Judge Cannon asks how there’s no accountability considering the Special Counsel was appointed by AG, who’s beholden to the executive branch.

Blackman replies that the special counsel is a temporary job though and as such, he's not beholden.

- Cannon, skeptical of this continuity argument, asks if continuity requires permanence. She later asks Blackman for a definition of continuity: Does it mean the formation of an office or can it be inferred by multi-year investigations, hiring, and other facets of the Special Counsel Office?

Blackman responds that Justice Rehnquist said it means being appointed to a specific task. Regardless of whether Smith is considered a principal or inferior, because his office is temporary he cannot direct an investigation.

- Blackman: Special Counsel in this case was assigned to investigate “a high-ranking government official.” Says Trump was a private citizen when the case was brought.

Judge Cannon notes: “but the law allows for one year after leaving office?”

Blackman says yes, but that the time in between Trump leaving office and case being brought surpassed a year.

- Gene C. Schaerr argues on behalf of Edward H. Trent and Citizens United Foundation.

- Schaerr: argues that courts have gotten it wrong since US v. Nixon, and that “U.S. v. Nixon cannot plausibly be - Schaerr got into a back and forth with Judge Cannon about precedent, before telling the court “it’s an imperfect world. People make mistakes. And just because other people have made mistakes doesn’t mean this court should 'treat it as controlling precedent.'"