To some legal observers, Judge Aileen Cannon for the Southern District of Florida showed two qualities in deciding to rule that Special Counsel Jack Smith was unconstitutionally appointed and, in doing so, throw out the Mar-a-Lago records prosecution: cynicism and ambition.
“This opinion is a bit of an audition to, I don’t know, an audience of one, not just an audience of nine, if you will,” Jed Shugerman, a professor at Boston University School of Law, told TPM in a phone interview. “If I were looking to put myself on the short list of very rarefied judicial air in a Trump presidency, this is the opinion I would write.”
Cannon’s own judicial ambitions aside, several legal experts including Shugerman marveled to TPM at how much her ruling tossing the classified records retention case read like an appellate opinion, and not that of a district court judge. Going far beyond the typical role of a judge at her level, Cannon laid new legal ground, contravening decades of decisions across the country, including two at the D.C. Circuit, to the contrary. She also opened herself up to the possibility that Smith could both appeal the case — his office said Monday it would — and move for Cannon’s removal based on her handling of the matter.
The future of the case also depends on President Joe Biden securing re-election in November, a prospect about which many elected Democrats have professed a growing level of skepticism. If Trump wins in November, he’s promised to order the DOJ to drop the federal cases against him, and would likely fire Smith and his team.
The existence of special counsels has long been seen as a bulwark of DOJ independence. When criminal investigations touch on the presidency, they’ve allowed federal prosecutors to examine the allegations in a manner that’s theoretically free of interference from the person in charge of the executive branch.
Cannon’s decision, if broadened out to its furthest aperture, suggests that should come to an end, in part because of her finding that DOJ-issued regulations and not congressional statutes underpinned elements of any special counsel’s appointment.
“There’s no special counsel that we would care about that would be valid under this opinion,” Shugerman said.
In some ways, it’s a logical next step after the immunity ruling earlier this month in Trump v. United States: not only is it exceedingly difficult to charge the president with a crime, but it’s impossible for the DOJ to have an independent prosecutor. Justice Clarence Thomas outlined a broadly similar view of why Smith’s appointment is unconstitutional in a concurrence in that case.
Smith’s options
All that isn’t to understate the sheer radicalness of Cannon’s decision. Several attorneys told TPM that they expected the 11th Circuit to reverse Cannon’s decision, opening the question of whether it would return to her or if Smith would be able to get the appeals court to remove Cannon from the case.
“I think getting this overturned before the election is very likely. I mean, I don’t think that would be a huge effort,” Peter Zeidenberg, a former federal prosecutor now at Arent Fox, told TPM. “I think Jack Smith could write a brief in the next 10 days, and ask for expedited briefing, and this could get resolved in a month.”
But it’s not clear what value a potential victory at the 11th Circuit and declination by the Supreme Court would have if the case returns to Judge Cannon. Since Trump first sued in the pre-indictment phase to block the investigation, Cannon has managed to extensively delay the case, first by approving Trump’s request in the civil lawsuit and later by declining to rule on a series of issues post-indictment. Both parties have said that they were prepared to try the case by the summer; Cannon indefinitely delayed the trial.
“Winning on this and the case going straight back to her is not particularly useful, she’s just going to rule against him on the next issue that comes up,” Brian Greer, a former attorney in the CIA general counsel’s office, told TPM.
Smith could have a difficult time persuading the 11th Circuit to remove Cannon from the case, particularly given that the appeals court has only reversed her once. Other options, Greer said, could include refiling the case on an obstruction charge in D.C., or having the U.S. Attorney’s Office for the Southern District of Florida reindict the case.
These are long-shot options. So far, Smith’s office has said only that they’ll appeal the case. In his inimitable way, Smith spokesman Peter Carr said that Cannon’s ruling “deviates from the uniform conclusion of all previous courts.”
Source link
