Special counsel Jack Smith is appealing far-right Judge Aileen Cannon's decision to toss out the Mar-a-Lago classified documents case against former President Donald Trump — but even before he makes his case, a separate special counsel is echoing the argument he is likely to use, wrote Matt Naham for Law & Crime.
Cannon ruled that only Congress or the president have the power to appoint a special counsel. As Smith was appointed by a U.S. attorney general, she ruled he was illegitimate.
And Naham noted that another special counsel, Andrew Weiss, is citing work by Justice Brett Kavanaugh, before he was appointed to the Supreme Court.
Weiss is presiding over the federal prosecution of Hunter Biden, who was convicted of unlawfully concealing drug abuse on a background check to obtain a firearm. Biden is now seeking to use Cannon's ruling as grounds to dismiss his own conviction.
But Weiss is noting that, first of all, Cannon's logic doesn't even apply here, because he was in fact a Senate-confirmed U.S. attorney at the time that the Justice Department appointed him under the special counsel statute, something that wasn't true of Smith. But insofar as it would apply, his filing also noted that Cannon's decision stands in the face of over a century of precedent in how the Justice Department has conducted independent investigations.
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"Drawing on the authority to retain counsel originally conferred in 1870, past Attorneys General have 'made extensive use of special attorneys,'" wrote Weiss. "These instances — involving appointments by Attorneys General under Presidents Garfield, Theodore Roosevelt, Truman, Kennedy, Nixon, Carter, George H.W. Bush, and Clinton — span nearly 140 years and include some of the most notorious scandals in the Nation’s history, including Watergate. See, e.g., Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L.J. 2133, 2142-44 (1998).
"Congress has also long demonstrated its understanding that the Attorney General has authority to appoint special counsels by repeatedly appropriating funds for the Attorney General to compensate them."
Smith himself made use of that exact same citation in his original dispute with Cannon, and is almost certain to bring it up when the 11th Circuit hears his appeal.
Legal experts are divided over what is likely to happen next. Some believe higher courts are likely to reinstate the case and possibly even remove Cannon from overseeing it. Others have noted there are several difficult obstacles for Smith to overcome for any of this to happen.
