By james art President Trump has until Friday to convince the 11th United States Circuit of Appeals to uphold Judge Eileen Cannon’s ruling disqualifying special counsel Jack Smith from the Mar-a-Lago case.
Mr. Smith’s disqualification and the dismissal of charges against Mr. Trump for hiding classified documents at his Palm Beach mansion represent the 45th president’s signature court victories in the four criminal cases against him. However, they could lead to temporary triumphs if the Florida jurist is overruled.
Judge Cannon’s ruling was a stunning blow to the special counsel, who has been tasked by Attorney General Garland with prosecuting Trump for January 6 and preserving the documents. Both cases, unprecedented in American history, faced skepticism from the bench. The Florida government’s case, which many thought was more stable, is now in a more dire situation.
The protracted road to trial came into sharp focus this week when the New York Times reported that two prosecutors, Julie Edelstein and David Raskin, had left Mr. Smith’s office. The case is now primarily in the hands of appellate specialists, lawyers experienced in mounting arguments before the district courts and the Supreme Court.
Any tendency for Trump’s lawyers to be overconfident may be tempered by Judge Cannon’s record. She has been overruled in this case before, most notably when she appointed a special counsel to oversee the collection of the Mar-a-Lago records. The Chain Riders opined that her ruling “would be a radical reordering of our jurisprudence … and both would violate the foundation of separation of powers restrictions.”
A turn that looks like someone would take the case back to Judge Cannon’s court. A group of legal scholars, including Lawrence Tribe and George Conway, are pushing for a more drastic ruling — one that removes Judge Cannon from the case. Federal law allows for the removal of a judge if she has “engaged in conduct that would give the impression of … a lack of impartiality in the mind of a reasonable member of the public.”
Mr. Smith has waived that request, but the 11th Circuit can review it even without his approval. The riders will turn their attention to Judge Cannon’s ruling that General Garland had no legal authority to appoint Mr. Smith, who was neither nominated by the President nor confirmed by the Senate. She also found his funding illegal.
Justice Cannon’s decision stated that “Mr. Smith’s position effectively usurps … an important legislative power … in the process endangering the structural freedom inherent in the separation of powers.” She rejected what she called “the strained legal arguments of Mr. Smith calls for inconsistent history or reliance on off-chain authority’. She insists that “the Appointments Clause is a critical constitutional limitation.”
The judge’s boldest decision was that the Supreme Court case of United States v. Nixonwhich appears to endorse the attorney general’s ability to name subordinate prosecutors, “is not controlling and should not be extended to today’s context” because the attorney general’s statutory appointment authority “has not been raised, argued, challenged, or analyzed. ” She understands that the decision is dictum or non-binding.
Mr. Smith has now asked the 11th Circuit to overturn Judge Cannon’s finding that his appointment “violates two structural cornerstones of our constitutional scheme—the role of Congress in appointing constitutional officers and the role of Congress in authorizing spending by law .”
A brief message from Mr. Smith to the 11th Circuit reminded riders: “Attorneys general have appointed outside counsel to prosecute some of the most significant cases of the day, including the prosecution of Jefferson Davis for treason and the prosecution of John Surratt for aiding and abetting the assassination of President Lincoln. He notes that special counsels have been appointed since before the Department of Justice existed.
The special counsel tells the circuit that Judge Cannon “departed from binding Supreme Court precedent, misinterpreted the statutes authorizing special counsel appointments, and failed to take into account the long history of special counsel appointments by the attorney general.” He also claims that her reading of the Nixon rejects “carefully considered, unequivocal language from a unanimous Supreme Court.”
Judge Cannon’s opinion is binding only in the Southern District of Florida – for now. Judge Tanya Chutkan of the District of Columbia has already telegraphed that she understands that the United States Court of Appeals for the District of Columbia Circuit has already ruled that attorneys general have the power to appoint subordinate prosecutors.
General Garland, who was once Chief Justice of the District of Columbia, agrees. He went on television to accuse Judge Cannon of making a “fundamental error of law” when she disqualified his handpicked special counsel. The issue may soon find a hearing before the Supreme Court, where there may be justices who want to review the precedent that gave constitutional imprimatur of independent counsel, the forerunners of today’s special counsels.