Special Counsel Jack Smith has been delivered another massive blow.
Judge Aileen Cannon has dismissed the classified documents case.
Cannon used the opinion of Justice Clarence Thomas in the presidential immunity case to support her ruling.
Not Legal
Thomas questioned the legality of Smith’s appointment in his ruling, something most of us thought had been settled long before.
Let’s not forget that we have seen numerous special counsels appointed that have never been challenged, and that would include the appointment of John Durham.
Even so, Cannon leaned into the opinion of Thomas to dismiss the case against Trump, a decision that has already been appealed.
Cannon’s ruling stated, “In the end, it seems the Executive’s growing comfort in appointing ‘regulatory’ special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny.
“Perhaps this can be traced back to reliance on stray dictum in Nixon that perpetuated in subsequent cases.
“Perhaps it can be justified practically by the urgency of national crises.
“Or perhaps it can be explained by the relative infrequency of these types of investigations, by congressional inattention, or by the important roles that special-counsel-like figures have played in our country’s history.
“Regardless of the explanation, the present Motion requires careful analysis of the statutory landscape to ensure compliance with the Constitution, and the Court has endeavored to do so with care.
“The Court thus returns to where it started. The Appointments Clause is ‘among the significant structural safeguards of the constitutional scheme.’ Edmond, 520 U.S. at 659. So too is the Appropriations Clause, which carefully separates Congressional control of the ‘purse’ from Executive control of the ‘sword.’ The Federalist No. 78 (Alexander Hamilton).
“The consequences of relaxing either of those critical provisions are serious, both in this case and beyond.
“As Justice Frankfurter explained in his opinion in Youngstown, ‘[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.’ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). ‘[I]llegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.’ Boyd v. United States, 116 U.S. 616, 635 (1886).”
As I noted above, the Department of Justice has already filed an appeal in the case, so now it will be up to the 9th Circuit to decide if Cannon went too far or if Merrick Garland broke the rules in appointing Smith as a special counsel.
