An unorthodox ruling from Judge Aileen Cannon on special counsel appointments has already been eyed by Hunter Biden and earned an usually sharp rebuke from the attorney general as it plods along a path that could reach the Supreme Court.
Cannon earlier this month sided with attorneys for former President Trump, agreeing to toss his Mar-a-Lago documents case after finding special counsel Jack Smith was not lawfully appointed.
It was a decision that came after Supreme Court Justice Clarence Thomas seemed to signal support for the lower court judge by wading into the matter in an unrelated Trump case.
The unusual ruling – one that legal experts say flies in the face of50 years of decisions regarding special counsels – has ignited Smith’s second appeal in the case, which won’t be heard until October.
It’s also renewed scrutiny of Cannon, who has raised eyebrows by entertaining what many legal experts have described as longshot legal bids by Trump, who appointed her.
“Certainly it’s an outlier, and it's unsupported, and I guess, for lack of a better word, it's kind of wacky. Because it just doesn't really have a grounding in any legitimate source of constitutional law,” Michael Gerhardt, a law professor at the University of North Carolina School of Law, told The Hill.
“It's just not consistent with Supreme Court precedent, historical practice, constitutional text or constitutional structure. It goes out of its way to kind of strike down the appointment. But keep in mind, we've had this kind of mechanism for appointments for decades... .So there's a lot of historical precedent that supports it, and none going the other way.”
According to Cannon, Smith’s appointment threatens the separation of powers because his appointment was not considered by the Senate, which also did not confirm him. She wrote that his role “effectively usurps that important legislative authority.”
The ruling sparked Attorney General Merrick Garland to forcefully suggest Cannon had flubbed the issue, committing an error any studious lawyer would avoid.
“For more than 20 years I was a federal judge. Do I look like somebody who would make that basic mistake about the law? I don't think so,” Garland said during an interview with NBC News, noting he picked DOJ’s law library as the setting for the conversation.
“Our position is that it’s constitutional and valid. That’s why we appealed. I will say that this is the same process of appointing special counsel as was followed in the previous administration, and for special counsel Durham and special counsel Mueller, multiple special counsels over the decades, going back to Watergate and the special prosecutor in that case,” Garland added.
Until now, every single court, including the Supreme Court, that has considered the legality of a special counsel appointment, has upheld it.”
Ankush Khardori, a former federal prosecutor, described Cannon’s approach as “low rent textualism,” saying that in reviewing special counsel regulations she was “break[ing] it into its most discrete, tiniest parts” and ignoring broader context and the background of why and how the special counsel regulations were written.
“You never really take a step back by design – by design – I want to emphasize that – they never take a step back to consider: Does this make sense? What were people thinking about when they actually enacted this scheme? What did Congress have to say, if anything, on that? What can we interpret from the fact that Congress has done nothing about this, that this has been embedded in our political and legal culture for decades now?” he said.
“If you don't ask these obvious questions then you can reach whatever conclusion that you want. That's kind of how I see her opinion,” he added.
He also cautioned against trying to go too deep in the weeds on Cannon’s rationale.
“Once you're at that level of dispute, you've already bought into their framework, which I think is disingenuous,” Khardori said.
Still, Cannon’s ruling was quickly seized upon by Biden’s attorneys, who reinitiated an effort to toss his criminal case by arguing the special counsel in that matter, U.S. Attorney for Delaware David Weiss, was also unlawfully appointed.
It may not be a winning argument for Biden, who’s matter is before a different judge, and who is facing prosecution by an attorney who has previously been confirmed by the Senate.
But Gerhardt doesn’t see that as undercutting Smith, pointing to the special counsel statutes Garland cited in appointing him.
“Garland, in his executive order authorizing the appointment, emphasized that Smith was going to be an inferior officer, not a superior officer, he said that a couple times. And what that does is it basically triggers the appointments clause of the Constitution, which allows for the appointment of a prosecutor by various means, including by the head of departments,” he said.
“What Thomas and Cannon are arguing, which is, I should say, unprecedented in constitutional law is that if somebody is going to have the jurisdiction that Jack Smith has, he has to be what's called an officer of the United States, not only nominated by the president but confirmed by the Senate for that position. That position – it's unheard of. Nobody's ever argued that before. And one reason why nobody's ever argued it before is because it’s a loser,” he added.
The matter now sits before the 11th Circuit Court of Appeals, which has already reversed an earlier decision from Cannon in which she appointed a special master to review the documents collected from Mar-a-Lago, initially keeping them from prosecutors.
While that has left some legal observers confident about the prospects of Smith’s appeal, Trump’s team could then push to bring the matter before the Supreme Court.
“I would hope the Supreme Court would not even look at it,” Gerhardt said, noting they are not obligated to take the case.
But it’s clear at least Thomas has an interest in doing so.
“I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires,” he wrote in a concurring opinion to Trump’s immunity bid, which determined even former presidents have some protection from criminal prosecution.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas wrote.
Khardori noted it was unusual for Thomas to “full throatedly adopt a legal position when it has not been fully briefed in front of them.”
“I would be very concerned if I were Garland and Smith about this. I'm sure they're very concerned about it. Not because, again, I think Cannon is right – I think she's wrong. But we're now in this political and legal environment where that does not resolve the inquiry,” he said, calling it a “toss up” whether the court might side with the view of Cannon and Thomas.
“I think they have carried themselves out more politically this year than many people might have appreciated that they were capable of conducting themselves,” he said of the court.
Khardori has one larger concern – that under a second Trump administration, his Justice Department would withdraw the case, ending the battle over Cannon’s decision and leaving it to be relied upon by future officials who would determine when it comes to investigations, “you have to do it yourself.”
“I would expect, given that lay of the land, that Trump and his attorney general would use this opinion to argue that they cannot appoint any independent or special counsel…in fact that they have to keep those investigations and prosecutions within Trump and his appointees’ purview. That is the logic of Cannon’s opinion,” Khardori said, leaving them with direct oversight of any investigations into political opponents.
“Now that is ridiculous for a bunch of reasons, but that is the import of her decision. And I expect Trump, his attorney general, and the people that populate a Trump Justice Department to tease out those implications.”
