Special counsel Jack Smith's team is pushing back as District Judge Aileen Cannon weighs a legal theory propounded by Supreme Court Justice Clarence Thomas that Smith's appointment is unconstitutional.
Smith filed a rebuttal of this idea with Cannon, who is presiding over former President Donald Trump's federal classified documents case in South Florida.
"Trump’s notice ... refers to Justice Thomas’s concurrence addressing the Special Counsel’s authority to prosecute," wrote Smith. "That single-Justice concurrence — addressing an issue that Trump did not raise (See Sup. Ct. Tr. 33-34), that the parties did not brief, and that was not relevant to the question presented to, or decided by, the Court — neither binds this Court nor provides a sound basis to deviate from the uniform conclusion of all courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel."
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Moreover, Smith noted, even Thomas' concurrence acknowledges that the Supreme Court found the same laws the Justice Department relied on to appoint Smith "support[ed] the appointment of the Special Prosecutor in United States v. Nixon," the landmark criminal investigation surrounding the Watergate scandal.
Cannon, a right-wing judge herself appointed by Trump, has come under repeated criticism for a series of moves that appear tilted to favor Trump in the case. She has already put the trial on indefinite hold, effectively making it impossible to take place before the November election, based on a number of unresolved pretrial disputes that she sat on for months with no action.
Legal experts watching the case have already warned that if Cannon finds a pretext to dismiss Trump's case entirely, Smith can go to the Court of Appeals for the Eleventh Circuit and have her ejected from the case altogether. For the time being, he has not made such a move, and appellate Chief Judge William Pryor, himself a hard-right conservative, has rebuffed certain outside parties' complaints about Cannon's conduct.
