Jack Smith, in Pursuit of Trump and Racing Against the Clock, Gets an Assist From Merrick Garland

Special Counsel Jack Smith’s notice of his intent to appeal Judge Aileen Cannon’s ruling that his appointment was unconstitutional heralds a new phase in the push to convict President Trump for storing secret documents at Mar-a-Lago.The one line formal notice docketed at South Florida gives no indication of what lines of argument the special counsel will pursue, but it does signal that he intends to challenge Judge Cannon’s decision in the normal course — by petitioning the United States Court of Appeals for the 11th Circuit.That review tribunal, based at Atlanta, oversees Judge Cannon, and has already overruled her once before, when she appointed a special master to oversee the government’s collection of evidence from Trump’s Palm Beach manse. A panel of three riders accused her of a “radical reordering of our case law” and ventured that her decision “would violate bedrock separation-of-powers limitations.” Mr. Smith has alluded to the possibility of appeal throughout this litigation, especially with respect to jury instructions and the redaction of names of witnesses. This is the first time in a year and a half, though, that the case has now reached the riders. It concerns whether the special counsel’s appointment violated the Appointments Clause. Judge Cannon ruled that it did, and, to boot, dismissed the 40 charges Mr. Smith handed up. She found that he was wielding power he “did not lawfully possess.”A spokesman for Mr. Smith explains that “the Justice Department has authorized the Special Counsel to appeal the court’s order,” meaning that Attorney General Garland — whose appointment of Mr. Smith has proved to be the special counsel’s Achilles’ heel — is supporting his appeal strategy. The special counsel will likely argue that Mr. Garland possessed the statutory and constitutional authority to appoint him as a subordinate officer. It is possible that Mr. Garland has signed onto an even bolder strategy. Now that Mr. Smith has filed his notice of appeal, he can move to leapfrog that court and seek consideration from the Supreme Court via an application known as “certiorari before judgment.” The special counsel was unsuccessful when he moved for that expedited hearing in the immunity case, though he did win an accelerated ruling from the circuit riders. An immediate appeal to the Supreme Court possesses a certain logic. One of Judge Cannon’s most daring conclusions was that a high court precedent, United States v. Nixon, is not controlling law but is instead mere dictum, or a non-binding observation. The Nixon court found that the then *special prosecutor, Leon Jaworski, was invested with the “power to appoint subordinate officers to assist him in the discharge of his duties.”Judge Cannon determined that the conclusion in Nixon is not a free pass for Mr. Smith because the issue was not briefed and argued a half century ago. In the immunity case, though, the high court’s senior justice, Clarence Thomas, signaled that he could agree with Judge Cannon that Mr. Smith’s appointment is crosswise with the maxim that “there can be no valid officer without a valid office.” How many other justices, though, share his skepticism?Justice Brett Kavanaugh could be one. During oral arguments on the immunity issue, he ventured that “one of the Court’s biggest mistakes was Morrison v. Olson.” That case, from 1988, upheld the precursor to the special counsel — the independent counsel. Justice Kavanaugh’s harsh words for Morrison could suggest that he is prepared to side with Judge Cannon. The assents of four justices are required for the court to take on a case. To skip the appellate line, though, Mr. Smith would have to make a case for urgency. That would appear difficult, as there is no possibility that, even if the court acts with alacrity, the case will be heard before the election — or even before January 20, when the next president would be sworn in.The special counsel has never explicitly cited such a motivation, and it would appear to have political rather than legal salience. For the case to reach the Supreme Court in the normal course could take years. Then too, Mr. Smith just last month suffered a bruising defeat from the Nine on immunity. If, in any event, Mr. Smith convinces the riders of the 11th Circuit that Judge Cannon erred and that extant statutes and precedent support the ability of the attorney general to appoint a special counsel in the absence of confirmation by the Senate. The case would then simply resume before Judge Cannon. It could be in, say, a year’s time. Mr. Smith could ask the 11th Circuit to remove her as part of his appeal, though an adverse ruling is not grounds for recusal.In federal court losing parties — like Mr. Smith — have two weeks to file a notice of appeal or the possibility of review is forfeited. So the special counsel’s notice could be a placeholder for more dramatic action, like, say, deciding to drop the charges and having a United States attorney pick them up — or the longest of long shots — moving for the 11th Circuit to remove Judge Cannon on its own. ________Correction: The special prosecutor at issue in United States v. Nixon was Leon Jaworski. His position was misstated in the bulldog.

Jack Smith, in Pursuit of Trump and Racing Against the Clock, Gets an Assist From Merrick Garland

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