By james art Could the clash between President Trump and Jack Smith tip the Morrison v. Olson? This is the case he gave imprimatur high court to an independent counsel, which overlaps with the issues as the 11th Circuit of Appeals prepares to review Attorney General Garland’s appointment of the special counsel. Justice Antonin Scalia’s lone dissent Morrison could be tomorrow’s majority.
The thing to remember Morrison that’s it Congress and the public ultimately sided with Justice Scalia when they let the statute in question expire in 1999. How wise the Supreme Court would have been to address this fact clearly in the present case. Because what worried Scalia so much then — the violation of the separation of powers — is a problem today. Judge Eileen Cannon’s decision to disqualify Mr. Smith from the Mar-a-Lago prosecution could lead to that.
The action is currently in the south. Trump’s argument for why Judge Cannon was right is due to the 11th Circuit on Friday. He will insist that the contestants confirm her finding that Mr Garland’s appointment of Mr Smith had no legal authority. Justice Cannon wrote that hiring Mr. Smith “effectively usurps … an important legislative authority … in the process endangering the structural freedom inherent in the separation of powers.”
No matter which party prevails in the 11th Circuit, an appeal — albeit a ouster — could be possible Morrison is not strictly necessary to solve this case. Judge Cannon’s ruling applies only in her district and only to Mr. Smith. Still, as our AR Hoffman reports, some sages have laid the groundwork to challenge the precedent by bringing it up to Justice Cannon. Judge Clarence Thomas seemed to share her skepticism about the special prosecutor.
The key document is an amicus brief reinforcement of Judge Cannon. It was written by scholars Joshua Blackman and Robert Sasso on behalf of another sage, Seth Barrett Tillman, former Whitewater prosecutor Robert Ray, and the Landmark Legal Foundation. In a nod to Scalia’s language, they state that “the special counsel, like the independent counsel, still comes as a wolf.” The Supreme Court can hear questions raised by friends.
What a boost to the presidency it would be for the Nine to raise Scalia’s banner. Mr. Blackman tells Mr. Hoffman that Morrison paths only Roe v. Wade and Chevron USA, Inc. v. Natural Resources Defense Council in the pantheon of wrong decisions. Roberts’ court banished them to the dustbin. Now there is some agitation on the part of the justices — a possible faction, if not yet a majority — that portends a review of precedent.
Those hints came during oral arguments in Mr. Smith’s other case. Justice Brett Kavanaugh stated that “one of the Court’s greatest errors was Morrison v. Olson.” He called it a “terrible decision for the presidency and for the country.” He worries that the prosecution of former presidents “will not stop.” That, in turn, could damage what Scalia called “presidential courage.” Can other justices join Justices Cavanaugh and Thomas?
The most audacious part of Justice Cannon’s démarche was her reading of another Supreme Court precedent, United States v. Nixon. In 1974, a unanimous court ruled regarding the appointment of Leon Jaworski as a special prosecutor that attorneys general have the power to appoint subordinate prosecutors. She found this conclusion a sentence or “optional precedent.” The justices could agree — or overturn Nixon, too, on top of that Morrison.
Morrison, of course, can stay. Today’s special counsels are not as autonomous as yesterday’s independent counsels, which mitigates Scalia’s concerns. Yet the logic of the Supreme Court’s immunity decision suggests concern about anything that might precipitate “the president’s hesitancy to fearlessly and honestly discharge the duties of his office.” Somewhere beyond the Pearly Gates, we imagine Scalia nodding in agreement as his fingers drum on a cloud.