If Judge Cannon Sides With Trump and Disqualifies Jack Smith, She Could Set the Stage for a Supreme Court Showdown

Judge Aileen Cannon spent her Friday presiding over hearings as to whether Special Counsel Jack Smith was constitutionally appointed. A ruling to disqualify him, though, could double as a fast track to a Supreme Court appeal for the special counsel.President Trump’s position is that Mr. Smith’s investiture as special counsel by Attorney General Garland violates the Appointments Clause. Mr. Smith argues that his appointment to the position is consistent with Supreme Court precedent and that Judge Cannon is opening an issue that has already been closed by the Nine. Such an inquiry would be a risky one for a trial court judge.The Washington Post, though, reports that Judge Cannon appeared skeptical of Trump’s case against Mr. Smith, telling the 45th president’s counsel, “District court in D.C. did a fairly comprehensive review” and found that the special counsel was appointed validly. Mr. Smith’s team calls any challenge contrary to that position “unsound.” Central to Mr. Smith’s argument to keep his job is the observation that the appointment of a special counsel by the attorney general has already received the imprimatur of the high court. In United States v. Nixon, the court held that “Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. It has also vested in him the power to appoint subordinate officers to assist him.” That case, like the Mar-a-Lago one, was “a judicial proceeding in a federal court alleging violation of federal laws, and is brought in the name of the United States as sovereign.” The special prosecutor in Nixon was Leon Jaworski, who took over after his predecessor, Archibald Cox, was dismissed during the Saturday Night Massacre. Trump, though, contends that Mr. Smith’s appointment is invalid because he was not nominated by the president and confirmed by the Senate, as is required for principal officers like United States attorneys. Mr. Smith bypassed that process because General Garland plucked him from prosecuting war crimes at the Hague, a position that does not need a nod from lawmakers.Attorneys General Meese and Mukasey, who oppose Mr. Smith’s appointment, write that United States v. Nixon is not an apt precedent because “no question was ever raised in that case about the validity of the independent counsel’s appointment.” They also argue that Nixon involved the “relationship between the President and DOJ as an institution,” not the legitimacy of the appointment of what was then called the independent counsel.In another Supreme Court case, Buckley v. Valeo, the justices explain, “Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary.” Mr. Smith contends that he is such an inferior officer, and Mr. Garland is the “head of department” who appointed him.The special counsel points to yet another Supreme Court case, that of Morrison v. Olson, for the proposition that the independent counsel — and the contemporary iteration — “clearly falls on the ‘inferior officer’ side of th[e] line” between principal and inferior officers. Even Justice Antonin Scalia, in a fearsome dissent contesting the constitutionality of the independent counsel, did not contest the inferiority of the office, only its violation of separation of powers.In 2019, contemplating a prior special counsel, the United States Circuit Court for the District of Columbia Circuit ruled, “Binding precedent instructs that Special Counsel Mueller is an inferior officer under the Appointments Clause.” The riders pointed to Mr. Mueller’s defined scope and the possibility that he could be fired by the acting attorney general at the time, Rod Rosenstein. Trump could observe that Mr. Mueller — like the special counsel, David Weiss, who won a conviction against President Biden’s son Hunter — had already been confirmed by the Senate in their capacities as United States attorneys. In contrast, Trump has written to Judge Cannon, “Jack Smith lacks the authority to prosecute this action.”Whichever party loses before Judge Cannon is likely to immediately lodge an appeal to the United States Court of Appeals for the 11th Circuit, which has overruled the jurist before. The riders could well conclude that the abundance of Supreme Court case law means that the high court has already spoken. The justices, though, could reckon differently, and agree with Trump that the precedents are inexact enough to be unhelpful as a prelude.Mr. Smith seems to suggest that all this is settled law. That, however, may be overly optimistic. A clue to such a position surfaced in oral arguments in Trump v. United States, the case of presidential immunity that will be decided by the high court any day. Justice Brett Kavanaugh called Morrison v. Olson a “terrible decision for the presidency and for the country” because it entrenched an independent prosecutor within an executive branch where all authority “shall be vested” in the president.That may signal a groundswell of skepticism that could soon be arrayed against Mr. Smith._______Correction: United States v. Nixon is the case in which the Supreme Court found that Congress “vested in the Attorney General the power to conduct the criminal litigation of the United States Government” and “the power to appoint subordinate officers to assist him.” The case was mistitled in the bulldog.

If Judge Cannon Sides With Trump and Disqualifies Jack Smith, She Could Set the Stage for a Supreme Court Showdown

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