Fast forward a bit more than a month, and the issue Thomas broached is suddenly being treated seriously and extraordinarily by U.S. District Judge Aileen M. Cannon in the other case Smith has brought, which involves Trump’s alleged mishandling of classified documents and obstructing efforts to retrieve them. She previously scheduled a hearing on the subject for June 21, and she signaled Tuesday that it would be a substantial hearing featuring outside experts making arguments. That’s a rare occurrence.
The decision at the very least marks yet another successful delay tactic from the Trump team — tactics Cannon has been more than willing to entertain. She’s taking up the issue even after other courts have heard and rejected such claims before, with regard to Russia investigation special counsel Robert S. Mueller III.
But the effort also gets at a long-standing Republican campaign to question the legality of special counsels. And while those efforts have previously failed, some fear they could loom over efforts to hold Trump accountable, regardless of when the federal trials might be held. (The trials are unlikely to take place before Election Day but could still imperil Trump if he loses.)
The decision feeds into the two chief criticisms of Cannon and her handling of the case: that she’s slow-walking it and treating Trump’s fanciful delay tactics way more seriously than they deserve.
But on this motion, at least, it’s a theory with some big-name backing.
The effort has been spearheaded by prominent conservative lawyers, including former Reagan administration attorney general Edwin Meese III. (Meese himself was scrutinized by an independent prosecutor over the Iran-contra scandal. He was not charged, but the independent prosecutor’s final report suggests he abandoned his law enforcement role to serve as “the President’s defense lawyer.” Trump awarded Meese a Medal of Freedom in 2019.) They’ve argued for years that special counsels like Mueller and Smith aren’t authorized under the law. Rep. Thomas Massie (R-Ky.) broached the theory at a hearing with Attorney General Merrick Garland on Tuesday, the same day Cannon issued her latest order.
The general theory is that there is no statute authorizing these special counsels, ever since the Ethics in Government Act expired in 1999, because they are not confirmed by the Senate. It holds that special counsels are “principal” rather than “inferior” officers and thus must be confirmed U.S. attorneys, which Mueller wasn’t and Smith isn’t (but other recent special counsels have been). It holds they can otherwise assist U.S. attorneys, but that we can’t have unconfirmed special counsels with such power.
Despite Cannon’s apparent interest in the subject, the argument fared poorly with regard to Mueller. A similar claim about him was rejected by two U.S. district judges, including a Trump nominee, and later unanimously by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, a panel that included a Republican nominee.
The judges ruled that, contrary to the arguments of Meese and others, Mueller was an “inferior” officer, whom the attorney general was authorized by law to appoint. They said he was inferior because he “effectively serves at the pleasure of an Executive Branch officer who was appointed with the advice and consent of the Senate” — in that case the acting attorney general, who could remove the special counsel.
Those decisions aren’t binding on Cannon because the Supreme Court didn’t rule. But they do suggest this hasn’t been a close call for judges before. And yet, she has decided to give the matter a high-profile and unusual hearing.
The question from there would seem to be whether the historically conservative Supreme Court might ultimately take it seriously as well, as Thomas might be inclined to, if it gets to that point. The Supreme Court upheld the powers of special prosecutors in 1974 (during Watergate) and 1988 (during Iran-contra), but those cases were decided in another era under a different set of rules and aren’t completely analogous.
Katy Harriger, an expert on special counsels at Wake Forest University, said nothing can be ruled out.
The precedents “would suggest a judge who knew the law would quickly dismiss such claims, as have several other judges,” Harriger said. “However, in our current political and legal climate, nothing is a sure thing.”
She pointed to hints about Thomas’s position during oral arguments in the immunity case, as well as then-appeals-court Judge Brett M. Kavanaugh saying in 2016 that he wanted to put the “final nail in” the coffin of the 1988 decision in Morrison v. Olson. That decision affirmed the use of independent counsels under the Ethics in Government Act; critics of Mueller’s and Smith’s appointments say the expiration of that law means special counsels like them are no longer authorized.
“The current majority on the Roberts Court is generally hostile to appointment arrangements widely used in the modern administrative state that limit presidential control over executive actors,” Harriger said, adding: “So even though the law appears to be well settled in this area, there is uncertainty as to whether this Court will think a special counsel … meets the requirements for an ‘inferior officer.’
“As has been made clear in other areas, commitment to earlier precedent for precedent’s sake is not an animating value of this Court.”
Trump critics have derided the Supreme Court for taking up Trump’s immunity claims after they were roundly rejected by a unanimous appeals court panel — a decision that caused a substantial delay in his Jan. 6 prosecution.
But in that case, the court seems more inclined to decide on guardrails rather than to actually spare Trump the prosecution. That might be a valid pursuit ahead of a potential second Trump term in which he’s poised to further test the limits of the chief executive.
The idea that the Supreme Court would sign off on a president’s having total immunity from criminal prosecution for anything he might do was always far-fetched.
But it would seem less drastic for courts to sign off on the idea that Smith’s particular appointment was unlawful. And Cannon’s latest controversial decision indicates that outcome is in play.
