An unorthodox decision by Judge Aileen Cannon on special counsel appointments has already been considered by Hunter Biden and received a generally sharp rebuke from the attorney general as it trudges down a path that could reach the Supreme Court.
Cannon earlier this month supported former President Trump’s lawyers, agreeing to drop his Mar-a-Lago documents case after discovering that special counsel Jack Smith was not legally appointed.
It was a decision made after Supreme Court Justice Clarence Thomas appeared to signal support for the trial judge by delving into the issue in an unrelated Trump case.
The unusual decision – which legal experts say flies in the face of 50 years of decisions regarding special counsels–initiated Smith’s second appeal in the case, which will not be heard until October.
It’s also renewed scrutiny on Cannon, who raised eyebrows by entertaining what many legal experts described as long-shot legal proposals from Trump, who nominated her.
“It’s certainly an exception and it’s not supported, and I think, for lack of a better word, it’s kind of crazy. Because it simply has no basis in any legitimate source of constitutional law,” Michael Gerhardt, a law professor at the University of North Carolina School of Law, told The Hill.
“This is simply not consistent with Supreme Court precedent, historical practice, constitutional text or constitutional framework. He does everything he can to cancel the appointment. But keep in mind that we’ve had this kind of appointment mechanism for decades… So there’s a lot of historical precedent supporting it, and none going in the opposite direction.”
According to Cannon, Smith’s nomination threatens the separation of powers because her nomination was not considered by the Senate, which also did not confirm her. She wrote that his role “effectively usurps this important legislative authority.”
The decision led Attorney General Merrick Garland to strongly suggest that Cannon had failed in the matter, making a mistake that any studious lawyer would avoid.
“For more than 20 years I was a federal judge. Do I look like someone who would make this basic error about the law? I don’t think so,” Garland said during an interview with NBC News, noting that he chose the DOJ law library as the setting for the conversation.
“Our position is that it is constitutional and valid. That’s why we appeal. I will say this is the same special counsel appointment process that was followed in the previous administration, and for Special Counsel Durham and Special Counsel Mueller, various special counsels over the decades, going back to Watergate and the Special Counsel in that case,” Garland added.
So far, every court, including the Supreme Court, that has considered the legality of a special counsel appointment has upheld it.”
Ankush Khardori, a former federal prosecutor, described Cannon’s approach as “low-end textualism,” saying that in reviewing the special counsel’s regulations she was “broken.”[ing] breaking it down into its most discrete and minute parts” and ignoring the broader context and background of why and how the special council regulations were written.
“You never take a step back by design – by design – I want to emphasize this – they never take a step back to consider: does this make sense? What were people thinking when they actually implemented this scheme? What does Congress have to say, if anything, about this? What can we interpret from the fact that Congress has done nothing about this, that this has been ingrained in our political and legal culture for decades?” he said.
“If you don’t ask these obvious questions, you can come to whatever conclusion you want. That’s how I see her opinion,” she added.
He also cautioned against trying to delve too deeply into Cannon’s reasoning.
“When you get to that level of dispute, you have already adhered to their structure, which I consider to be false,” Khahardi said.
Still, Cannon’s ruling was quickly seized on by Biden’s lawyers, who have restarted an effort to drop his criminal case, arguing that the special counsel in that matter, U.S. Attorney for Delaware David Weiss, was also illegally appointed.
It may not be a winning argument for Biden, whose case is before a different judge and who faces prosecution by a lawyer previously confirmed by the Senate.
But Gerhardt doesn’t see this as a way to undermine Smith, pointing to the special counsel statutes Garland cited in nominating him.
“Garland, in his executive order authorizing the appointment, emphasized that Smith would be a junior officer, not a senior officer, he said that a few times. And what this does is basically trigger the appointments clause of the Constitution, which allows for the appointment of a prosecutor through various means, including by the department head,” he said.
“What Thomas and Cannon are arguing, which, I must say, is unprecedented in constitutional law, is that if someone is going to have the jurisdiction that Jack Smith has, he has to be what is called an officer of the United States, and not only appointed by the president, but confirmed by the Senate for that position. This position – is unprecedented. No one has ever discussed this before. And one reason no one has ever discussed this before is because he is a loser,” he added.
The issue is now before the 11th Circuit Court of Appeals, which has already reversed an earlier decision by Cannon in which he appointed a special master to review the documents collected at Mar-a-Lago, initially keeping them away from prosecutors.
While this has left some legal observers confident about the prospects of Smith’s appeal, Trump’s team could then press to take the issue to the Supreme Court.
“I hope the Supreme Court doesn’t even look at this,” Gerhardt said, noting they are not required to take the case.
But it’s clear that Thomas at least has an interest in doing so.
“I am not certain that any position for the Special Counsel was “established by law” as the Constitution requires,” he wrote in a concurring opinion on Trump’s immunity bid, which mandated that even former presidents have some protection against criminal prosecution.
“For this unprecedented process to proceed, it must be led by someone duly authorized to do so by the American people,” Thomas wrote.
Khardori noted that it was unusual for Thomas to “vehemently adopt a legal position when it was not fully briefed before them.”
“I would be very concerned if it was Garland and Smith with this. I’m sure they are very worried about this. Not because, again, I think Cannon is right – I think she’s wrong. But we are now in this political and legal environment where that doesn’t resolve the inquiry,” he said, calling it a “dispute” whether the court can side with Cannon and Thomas’ opinion.
“I think they’ve done better politically this year than a lot of people would have thought they were capable of doing,” he said of the court.
Khardori has a bigger concern — that under a second Trump administration, her Justice Department would drop the case, ending the battle over Cannon’s decision and leaving her at the mercy of future officials who would determine when it comes to investigations, “you have do it yourself.”
“I would expect, given the situation, that Trump and his attorney general would use this opinion to argue that they cannot appoint any independent or special counsel… in fact, they have to keep these investigations and prosecutions within Trump and his appointees. ‘range. That’s the logic of Cannon’s opinion,” Khardori said, leaving them with direct oversight of any investigations into political opponents.
“This is ridiculous for a number of reasons, but that is the importance of her decision. And I hope that Trump, his attorney general and the people who make up the Trump Justice Department figure out these implications.”
This story originally appeared on thehill.com read the full story
