By james art President Trump’s success in disqualifying Special Counsel Jack Smith from his South Florida Mar-a-Lago case — a disaster for the government — has the prosecutor scrambling to avoid the same fate in the District of Columbia.
On Thursday, Mr Smith presented to Judge Tanya Chutkan his arguments why the decision to disqualify Judge Eileen Cannon should not be transferred to the prosecution from January 6. Trump wants Judge Chutkan to follow Judge Cannon’s lead in ruling that Mr. Smith was illegally appointed. To boot, she denied the allegations.
The special prosecutor is asking Judge Chutkan, who has often been sympathetic to the government’s position, to “reject the defendant’s argument that the special prosecutor is not legally appointed or funded.” She pointed out that the precedent that binds her — set by the United States Court of Appeals for the District of Columbia Circuit — allows attorneys general to appoint subordinate prosecutors like Mr. Smith.
Mr. Smith argued that this precedent “strongly precludes” the 45th president’s argument that Attorney General Garland lacked the statutory and constitutional authority to appoint him without Senate confirmation. The prosecutor also warned Judge Chutkan not to endorse Judge Cannon’s ruling that Mr. Smith’s funding through the public purse violated the appropriations clause of the constitution. He calls this decision “unfounded.”
The government argued that Judge Chutkan should deny Trump’s request to dismiss the case because his lawyers waited too long to do so. The special counsel alleged that Trump “affirmatively stated that he did not insist on the Appointments Clause when asked during oral arguments in both the D.C. Circuit and the Supreme Court.” This is in contrast to his promptness in pressing the issue before Justice Cannon.
Trump recently called Judge Chutkan “the most evil person” in a conversation with podcaster Dan Boggino. It has consistently ruled against him, including ruling that he does not enjoy immunity for official acts, a ruling that was overturned by the Supreme Court. Judge Chutkan declared from the bench that “presidents are not kings” and handed down harsh sentences to the January 6 protesters whose cases he presided over.
For Mr. Smith to keep his job, he must defend how Mr. Garland did his duty by selecting him to prosecute Trump. The Attorney General accused Judge Cannon of making a “fundamental error of law”. However, the special counsel argued that Mr. Garland “is the head of the Department of Justice and has exclusive authority … to direct the “conduct of litigation” on behalf of the United States.”
The Constitution allows “heads of departments” to make “the appointments of such inferior officers,” but only if Congress provides for such appointments “by law.” Justice Cannon found that Mr. Garland had erred by failing to rely on sufficiently settled law. Mr. Smith now argues that there are more than enough laws on the books for attorneys general to “appoint special counsels and define their duties” — as Mr. Garland did here.
Mr. Smith notes that the current special counsel provisions — implemented by Attorney General Reno at the start of this millennium — are less intrusive on the separation of powers than the previous regime, which gave the courts a role in appointing so-called independents lawyers. The government notes that the current regulations “provide entirely for an executive branch procedure for the appointment of a special counsel.”
The special counsel explains to Judge Chutkan that Mr. Garland appointed him two days after Trump announced his intention to retake the White House. Mr. Smith wrote that “faced with this sensitive situation, the attorney general is following the Department’s established practice of appointing a special counsel to dispel any notion that political motives played a role in the investigations.”
Trump disputes that account. He called Mr Smith’s latest information on immunity “monstrous”, a “false hit” and “politically motivated”. His claim, shared by millions, that the cases against him amount to “election interference” suggest the appointment has not been entirely successful in allaying suspicion of political motivations in the prosecution of the 45th president.
Mr. Smith described Mr. Garland as following “a well-worn path established by his predecessors in hiring special counsel in such delicate cases,” but Justice Cannon was unimpressed by that precedent, even as it was set by the Supreme Court. She held that the apparent approval of the Ninth, c United States v. Nixonof the attorney general’s prerogatives to appoint subordinate attorneys is not a binding sentence.
It appears that the special counsel has the upper hand, while Judge Chutkan is the one who pronounces the decision. At an earlier hearing on the matter, she called Judge Cannon’s ruling “an opinion filed by another district judge in another circuit that frankly this court doesn’t find particularly persuasive.” She noted that Trump was relying on “a concurring dicta written by Judge Thomas.” The top judge appeared to endorse Trump’s position just weeks before Judge Cannon ruled in his favor.
If Judge Chutkan denies Trump’s motion to dismiss, the 45th president can appeal that decision to the appellate riders of the District of Columbia. If they side with Mr Smith, the High Court will be the next appeal. In the meantime, Judge Cannon’s decision will be reviewed by the 11th Circuit of Appeals. If this tribunal and the District of Columbia are in dispute, the Ninth can take over the case and resolve the issue.