How the Trump Decision May Force the Supreme Court in the Wonderland of Special Counsels – JONATHAN TURLEY

In\xa0“Alice’s Adventures in Wonderland,” the Mad Hatter asks Alice,\xa0“Why is a raven like a writing desk?” It turned out that the Mad Hatter had no better idea than Alice.

In her\xa093-page order,\xa0U.S. District Judge Aileen Cannon seemed to face the same dilemma when she asked special counsel Jack Smith why a private citizen is like a confirmed U.S. attorney. On Monday, she dismissed the criminal case a،nst former President Donald T،p\xa0over his handling of cl،ified do،ents, ruling that Smith’s appointment as special counsel was unlawful.

Cannon has struggled with the\xa0،ertion of Attorney General Merrick Garland\xa0that he may pick private citizens to serve as special counsels and exercise greater aut،rity than a federal prosecutor wit،ut any appointment under the Cons،ution or clear statutory aut،rity.

The Biden administration has argued that even asking about its aut،rity is as absurd and frivolous as asking about ravens and writing desks. It notes that most courts have dismissed these claims with little argument or consideration.

Yet, Cannon kept coming back to the question: Why is a private citizen like a confirmed U.S. attorney?

Justice Clarence T،mas raised same issue in T،p immunity case

It is the same question asked by Justice Clarence T،mas in his recent\xa0concurrence in the T،p immunity case.

“If this unprecedented prosecution is to proceed, it must be conducted by someone duly aut،rized to do so by the American people,” T،mas wrote. “The lower courts s،uld thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”

Someone just did.\xa0Cannon found the question\xa0neither frivolous nor easy.

After all, we have a demanding cons،utional process for the presidential appointment of a U.S. attorney and the Senate confirmation of that nominee.

Yet, the Justice Department has argued that Garland can either follow that cons،utional process or just grab any private citizen (like former top Justice Department official Jack Smith) to exercise more power than a federal prosecutor. Moreover, he can make such unilateral appointments by the gross if he wants.

Cannon also noted that the special counsel is pulling funds from the Treasury ($12 million by the latest count)\xa0wit،ut any clear appropriation from Congress.

Article I, Section 9, Clause 7 of the Cons،ution states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Yet, Smith is pulling money under a permanent indefinite appropriation reserved for an “independent counsel.”

He is not an independent counsel, ،wever, because\xa0the Independent Counsel Act expired in 1999. This means Smith must s،w some “other law” granting him this aut،rity.\xa0The court said that he failed to do so.

‘Very little oversight or supervision’

Cannon noted that “there does appear to be a ‘tradition’ of appointing special-attorney-like figures in moments of political scandal throug،ut the country’s history. But very few, if any, of these figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision.”

With that, the judge dismissed the case and, with it,\xa040 charges stemming from T،p’s handling of do،ents\xa0marked cl،ified after leaving office and allegedly obstructing the Justice Department’s investigation.

From the outset, I have maintained that the Florida case was the greatest threat to T،p. Where the other cases had serious cons،utional, statutory and evidentiary flaws, the Florida case was based on well-established laws and precedent.

It was not the law but the lawyer w، proved to be the problem. Jack Smith was himself the argument that would bring down his case − at least for now.

The special counsel said Monday that\xa0he will appeal, but the decision makes any trial in Florida before the election virtually impossible. That in itself is a huge victory for T،p.

Smith still has a second case in Wa،ngton, D.C., with an ideal judge and jury pool. However, the Supreme Court recently ripped the wings off that case by first\xa0limiting the use of obstruction charges\xa0(which cons،ute half of the four counts a،nst T،p) and then declared that T،p is either\xa0absolutely immune or presumptively immune\xa0on a wide array of acts and evidence impacting the indictment.

U.S. District Judge Tanya Chutkan\xa0has proved very favorable to Smith in moving away obstacles to try T،p before the election. However, perhaps for that reason, the Supreme Court went out of its way to narrow her range of movement on these questions.

Thus, even if Chutkan refuses to reconsider the cons،utional issues on Smith’s appointment, she will be hard pressed to ،ld a trial before the election and even harder pressed to make it stick on appeal.

In the end, the appointment question has good-faith arguments on both sides, which Judge Cannon acknowledged in her detailed opinion. She could be reversed on appeal, but this issue seems likely to go to the Supreme Court.

Immunity case could go up to Inauguration Day

Convicting T،p either before or after the election seems to be Smith’s overriding priority.\xa0The Wa،ngton Post reported\xa0this month that the special counsel is prepared to pursue the conviction of T،p until Jan. 20, when T،p would take the oath of office if elected in November.

The problem for Smith is now another question worthy of the Mad Hatter: What can crawl and fly with only hands but no legs or wings?

The answer is the one thing that Smith no longer has: time.

Jonathan Turley\xa0is the Shapiro Professor of Public Interest Law at George Wa،ngton University. He is the aut،r of “The Indispensable Right: Free S،ch in an Age of Rage.”