Could Merrick Garland Save the Case Against Trump by Asking Jack Smith To Step Aside — and Taking the Reins Himself?

Judge Aileen Cannon’s ruling that Special Counsel Jack Smith was unconstitutionally appointed by Attorney General Garland surfaces the possibility that the chief law enforcement officer could rectify his mistake by taking the reins of the Mar-a-Lago case — and move Judge Cannon off of it in the process.That possibility is being discussed among lawyers involved in the case — and others — who recognize the importance of the constitutional terrain to which Judge Cannon has catapulted the case. There is also the looming shadow of the election, and the months, maybe years, of uncertain appeals that lie ahead if Mr. Smith seeks to keep his place atop the case.Mr. Smith has filed notice of appeal of Judge Cannon’s decision to the United States Court of Appeals for the 11th Circuit, and he has been given a deadline of August 27 to brief the circuit riders on his arguments for reversal. However that tribunal decides, an appeal to the Supreme Court would likely follow in short order. Mr. Smith, though, has of late been buffeted there, in respect of immunity. Only one justice, Clarence Thomas, has signaled, in a separate case, that he supports Judge Cannon’s reading of the Appointments Clause and the relevant statutes stretching back a half century. Even if Mr. Smith wins before the 11th Circuit and Supreme Court, the case would be sent right back to Judge Cannon’s courtroom at Fort Pierce. The special counsel’s tangles with the judge have stretched further than the manner in which he came by his job. A more radical solution could be to jumpstart the case by removing Mr. Smith altogether. That would cure Judge Cannon’s ruling that Mr. Garland made a “defective appointment” that tainted the entire case by ignoring the “absence of a statutorily created office.” There can be, she writes, “no valid officer without a valid office.”Bringing the case back under the umbrella of the Department of Justice — rather than outsourcing it to a special counsel — would regularize the prosecution, at least until the constitutionality of the special counsel is ascertained by higher courts.Swapping in Mr. Garland for Mr. Smith, though, would not be as easy as changing the line on the signature page of the indictment. The charges are now dismissed. They would have to be refiled by a United States attorney, one of Mr. Garland’s minions, presumably in the Southern District of Florida, which comprises Mar-a-Lago. That would entail a new grand jury to hand up charges, though the prosecutor would have the benefit of Mr. Smith’s work. The randomized assignment system, though, could spit Judge Cannon’s name out again. Special Counsel Jack Smith on August 1, 2023, at Washington, D.C. Drew Angerer/Getty ImagesThe possibility that the case could pass to a United States attorney — all of whom are nominated by the president and confirmed by the Senate, therefore evading the Appointments Clause snare that has hobbled Mr. Smith — has already been raised before Judge Cannon, and argued in her courtroom. In an amicus brief, the Landmark Legal Foundation and a professor, Seth Barrett Tillman, envisioned such a possibility. Although Mr. Barrett Tillman and his attorney, Joshua Blackman, maintained that Mr. Smith’s appointment was unlawful, they reckoned that he could continue work “under the normal supervision of the politically accountable United States attorney for the Southern District of Florida.” They add that “there is no question that such a prosecution would be valid under the Supreme Court’s Appointments Clause jurisprudence.” Messrs. Barrett Tillman and Blackman explained, “Whether this prosecution will proceed in the normal course is a policy judgment for the Attorney General and the Department of Justice.” There would be risks to the government to such an approach. Foregoing a special counsel would involve eschewing at least the pretext of an arm’s length relationship between the 45th president and the prosecution he still faces from the 46th one.Assigning the prosecution of Trump to “main Justice” could have baleful consequences for the prosecution down the line, as well. If Trump wins again, he could seamlessly appoint a new attorney general and order the charges be dismissed post haste. The Supreme Court just held, in the landmark immunity case, that a president’s interactions with the DOJ touch the heartland of his prerogatives and privileges, as does his power to dispense pardons. Keeping the case with Mr. Smith could, if he can obtain a reversal of Judge Cannon’s decision, provide sturdier protection even in the event of a second Trump presidency. While a President Trump redux would likely move against Mr. Smith, the special counsel could contend that the regulations mandate that he can only be removed for “good cause.” That, too, could require adjudication — possibly, one day, before the Supreme Court.

Could Merrick Garland Save the Case Against Trump by Asking Jack Smith To Step Aside — and Taking the Reins Himself?

Could Merrick Garland Save the Case Against Trump by Asking Jack Smith To Step Aside — and Taking the Reins Himself?

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