SCOTUS didn’t just upend Jack Smith’s plans to try Trump

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Jack Smith
Jack Smith

Katelynn Richardson
Daily Caller News Foundation

The Supreme Court’s ruling on former President Donald Trump’s immunity appeal made it all but certain no trial will take place before the election — and increasingly likely special counsel Jack Smith’s appointment will be deemed unlawful.

In a concurring opinion, Justice Clarence Thomas questioned the constitutionality of Smith’s appointment, writing that the lower courts should “answer these essential questions” before proceeding. Meanwhile, U.S. District Court Judge Aileen Cannon has received criticism for her approach to Trump’s classified documents case, where she is weighing the constitutionality of Smith’s appointment.

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“While the Supreme Court’s ruling on Presidential immunity in US v Trump was the headliner this week, what may bode even worse for Special Counsel Jack Smith is what lies within Justice Thomas’ concurring opinion,” former federal prosecutor Joseph Moreno told the Daily Caller News Foundation. “The ultimate issue may not be what types of charges Smith can bring against Trump, but instead whether Smith has the authority to supervises these cases at all.”

“This issue is already before Judge Cannon in Smith’s classified documents case against Trump, but Justice Thomas’ decision makes it all the more likely this issue will soon be front and center and possibly before the full Supreme Court,” Moreno continued.

The court held Monday in Trump v. United States that presidents have at least “presumptive immunity” for all official acts and “absolute” immunity for actions pertaining to the “exercise of his core constitutional powers.” Trump had sought to dismiss his Jan. 6 case in Washington, D.C., based on presidential immunity, but the lower courts declined to find he had immunity.

George Washington University law professor Jonathan Turley wrote after the ruling on Monday that the decision “reminds citizens that it is more important to get these questions answered right than fast.”

“For all of the criticism of Judge Cannon in Florida for holding hearings and considering arguments, this is why it is important to give serious and sufficient attention to these questions,” he wrote on X. “Judge Chutkan was praised for her speed in supporting Smith’s effort to try Trump before the election. She was wrong as was the D.C. Circuit.”

While he said he did not “blame them in an area with good arguments on both sides,” he noted “speed should not be the measure of performance for the courts.”

Cannon recently held hearings to consider Smith’s appointment, as well as whether funding for his investigation violates the Appropriations Clause.

The decision today also reminds citizens that it is more important to get these questions answered right than fast. For all of the criticism of Judge Cannon in Florida for holding hearings and considering arguments, this is why it is important to give serious and sufficient…

— Jonathan Turley (@JonathanTurley) July 1, 2024

Thomas wrote in his concurring opinion that he is “not sure that the office for Special Counsel has been ‘established by Law,’ as the Constitution requires.”

“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” he wrote. “A private citizen cannot criminally prosecute anyone, let alone a former President.”

JCN President Carrie Severino wrote on X Wednesday that Thomas “has a well-documented history of being ahead of the curve and raising important issues that aren’t addressed in majority opinions.”

Center for Renewing America Senior Fellow Mark Paoletta said on the “Charlie Kirk Show” that Thomas’ concurrence is important because Cannon is currently considering the issue.

Trump’s attorneys argued in a February motion to dismiss his classified documents case that Smith “lacks the authority to prosecute” the case.

“The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States,” his attorneys wrote.

If Cannon finds Smith’s appointment violated the Constitution’s appointments clause, former federal prosecutor Andrew McCarthy explained in the National Review that Garland would most likely “have to reassign the case to a district U.S. attorney appointed by President Biden.”

“That probably wouldn’t cause much delay,” he wrote. “It would, however, force Garland to abandon his independent-prosecutor deception — i.e., the artifice by which he and Biden claim that they have no involvement in the government’s prosecution of Biden’s electoral opponent and that all decisions are being made by Smith, a supposedly independent actor.”

ICYMI: CRA Sr. Fellow @MarkPaoletta says Justice Thomas’ concurrence in the Trump immunity case could put Jack Smith’s special counsel position in jeopardy

— Center for Renewing America (@amrenewctr) July 3, 2024

Legal experts previously told the DCNF that much of the criticism of Cannon’s management of the case is unsupported, including accusations that she is “slow-walking” it.

“Most of the partisan, left-wing criticism against Judge Cannon is not grounded in legal substance and instead is due to their personal dislike of the defendant, President Trump,” John Shu, a constitutional law expert and legal commentator who served in the George H.W. Bush and George W. Bush administrations, previously told the DCNF. “Judge Cannon was very well-regarded prior to her joining the bench and a dozen Democrat senators, including staunch liberals like Dianne Feinstein and Pat Leahy, voted in favor of her confirmation.”

Editor’s note: This article has been updated.

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