U.S. District Judge Tanya Chutkan has pretty much already closed the book on any possibility she will toss former President Donald Trump's federal election interference case in Washington, D.C. based on theories that special counsel Jack Smith was improperly appointed, former federal Judge John E. Jones told CNN's Boris Sanchez on Thursday afternoon.
The argument that Smith, not being a Senate-confirmed prosecutor, has no authority to bring federal cases was first proposed by Supreme Court Justice Clarence Thomas in a concurrence to the ruling that granted a presumption of immunity to presidents for official acts, and later used by Judge Aileen Cannon to toss Smith's case against Trump for unlawful removal of classified documents. That decision is currently under appeal.
What Chutkan said at Thursday's hearing on the case made her position clear, argued Jones.
"Judge, we saw how that kind of argumentation from Trump's team played out, as you mentioned, with Judge Cannon in South Florida, we know that the Trump legal team is going to try to make the same case again in this courtroom, essentially saying that the special counsel's appointment was in some sense unconstitutional or inappropriate," said Sanchez. "How do you think that's going to land with Judge Chutkan?"
"Judge Chutkan tipped her hand today," said Jones.
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"She said that she did not find Judge Cannon's opinion, 'particularly persuasive.' That means, in judge-speak, I don't think it holds water at all. I think that was a way to sort of candy-coat it." Similarly, Jones added, she brought up Thomas' concurring opinion, which, aside from being non-binding dicta, "she didn't think much of that either."
"So one thing we can say with assurance after the hearing today is, they can preserve that for appeal if they want to, but I don't think Judge Chutkan is ever going to toss this thing based on the special counsel being unlawful," concluded Jones. "That's just not going to happen."
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