His appeal of Judge Cannon’s ruling killing the Mar-a-Lago case is powerful and persuasive—but will it be enough?
ON MONDAY, SPECIAL COUNSEL JACK SMITH filed an appeal of U.S. District Judge Aileen Cannon’s outright dismissal of the classified documents case filed against Donald Trump in Florida. That case was widely perceived as the strongest of the four criminal indictments against Trump (the others being the January 6th indictment filed in federal court in Washington, D.C., the election-fraud case filed in state court in Georgia, and the Manhattan hush money case that produced a criminal conviction on 34 charges in June). Last month, Cannon tossed out the indictment on foundational grounds, declaring Smith himself an unconstitutional actor, as if everything he touches is worthless as a matter of law. The appeal signals that the Justice Department is not going to tolerate Smith getting “fired” this way.
In his appeal, Smith argues that the position of special counsel is supported by a host of laws that draw on the Congress’s Article II authority to create “inferior” officers. They include the following:
- Congress made the attorney general the “head of the Department of Justice,” and Congress “vested” in the attorney general “all functions of other officers of the Department of Justice” (including prosecutions);
- Congress empowered the attorney general to authorize “any other officer, employee, or agency of the Department of Justice” to perform any of those functions (such as U.S. attorneys and assistant U.S. attorneys);
- Congress authorized the attorney general to hire attorneys who are “specially retained under authority of the Department of Justice” as “special assistant[s] to the Attorney General or special attorney[s]”;
- Congress made clear that “any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, . . . which United States attorneys are authorized by law to conduct”; and
- Congress also provided that the attorney general “may appoint officials . . . to detect and prosecute crimes against the United States.”
Cannon nonetheless ruled that, despite these statutes, Merrick Garland had no legal power to appoint Special Counsel Jack Smith.
You don’t need to be a lawyer to appreciate what a stretch this is.
AN ESPECIALLY BIZARRE additional wrinkle: The prosecution of Hunter Biden was orchestrated by Special Counsel David Weiss, who under Cannon’s reasoning was also an unconstitutional actor.