Did Jack Smith Make a Fatal Error on Appeal in His Zeal To Convict Trump in Mar-a-Lago Case?
The special counsel’s decision to limit himself to the four corners of Judge Cannon’s ruling could be a savvy one — or a costly mistake.
Special Counsel Jack Smith’s appeal of Judge Cannon’s disqualification of him from the Mar-a-Lago prosecution against President Trump could cede the case’s constitutional ground to the 45th president
That is the impression shared with the Sun by a legal scholar, Joshua Blackman, who argued before Judge Cannon that Mr. Smith was unlawfully appointed. That gap could be exploited by Trump in his own brief to the 11th United States appeals circuit. That court could overrule Judge Cannon or uphold her disqualification of Mr. Smith. Either way, the issue, on further appeal, could be ticketed to the Supreme Court.
Judge Cannon found for Trump because she determined that there was no statute that empowered Attorney General Garland to appoint the special counsel without nomination by the president and confirmation by the Senate. The Constitution ordains that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
Mr. Smith’s decision to limit himself to the four corners of Judge Cannon’s ruling could be a savvy one — or a costly, even fatal, mistake. It offers the riders of the 11th Circuit the opportunity to reverse Judge Cannon — and return the case to her courtroom — without going out on a constitutional limb. Appellate jurists usually prefer to issue a narrow ruling to a wide-ranging one. The 11th Circuit has already reversed Judge Cannon once before, in respect of a special master.
The special counsel’s shyness on arguing on constitutional bedrock is replicated in respect of the Appropriations Clause. Judge Cannon writes that the money assigned to Mr. Smith’s office “violates the Appropriations Clause, but the Court need not address the proper remedy for that funding violation.” That’s because her ruling that Mr. Garland lacked statutory authority mooted the question of whether his operations unlawfully dipped into the public purse.
Mr. Blackman zeroes in on another possible vulnerability for Mr. Smith. The special counsel argues that “for more than 150 years, Attorneys General have appointed special counsels to investigate and prosecute some of the nation’s most consequential cases” and that “Attorneys General appointed special counsels even before the creation of the Department of Justice.” He cites the prosecution of the president of the Confederacy, Jefferson Davis, as well as of one of the accomplices in President Lincoln’s assassination.
Analogy, Mr. Blackman argues, only goes so far. Trump argues, and Judge Cannon agreed, that the elevation of Mr. Smith exceeded Mr. Garland’s reach. Mr. Blackman notes that the former prosecutor of war crimes at The Hague was promoted from “outside of government” and granted “huge authority and autonomy.” The scholar likens it to the question chanted at the Passover Seder — “What makes this special counsel different than all other special counsels?”
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