A little more than a month later, the issues raised by Thomas are suddenly being treated seriously and unusually by U.S. District Judge Eileen M. Cannon in a separate lawsuit brought by Smith, which alleges that Trump mishandled classified documents and obstructed their recovery. The judge had previously scheduled a hearing on the matter for June 21, and indicated Tuesday that it would be a full hearing, with outside experts bringing in to argue the case, a rarity.
The ruling is at the very least another successful delaying tactic by the Trump campaign, one that Mr. Cannon has embraced with glee, even as other courts have previously heard and rejected similar arguments regarding Russia special counsel Robert S. Mueller III.
But the effort also plays into a long-running Republican campaign to question the special counsel’s legitimacy. Those efforts have failed so far, but some worry they could cast a shadow over efforts to hold Trump accountable regardless of when the federal trial begins. (A trial is unlikely to begin before Election Day, but could still be in jeopardy if Trump loses.)
The decision feeds into two main criticisms of Cannon and her handling of the case: that she is moving forward slowly and that she is taking Trump’s fanciful delaying tactics more seriously than necessary.
But at least for this motion, it’s a theory that has celebrity backing.
The effort has been spearheaded by prominent conservative lawyers, including former Reagan administration Attorney General Edwin Meese III. (Meese himself was investigated by the independent counsel in the Iran-Contra affair. Though he was not indicted, the independent counsel’s final report suggested he would abandon his law enforcement role and serve as “counsel to the president.” President Trump awarded Meese the Medal of Freedom in 2019.) They have long argued that special counsels like Mueller and Smith are not authorized by law. Rep. Thomas Massie (R-Ky.) brought up the theory during a hearing with Attorney General Merrick Garland on Tuesday, the same day Cannon issued his latest order.
The prevailing theory is that there is no law authorizing these special counsels, since they have not been confirmed by the Senate since the Government Ethics Act expired in 1999. The theory goes that special counsels are “principal” officials, not “junior” officials, and therefore must be approved by the U.S. Attorney, which Mueller is not, and neither is Smith (though other recent special counsels have been), otherwise they would not be confirmed. Assist U.S. prosecutors argue that there cannot be an unconfirmed special counsel with such powers.
While Cannon seems interested in the issue, the arguments have not gone well for Mueller, whose similar claims were rejected by two U.S. district judges, some of whom were Trump appointees, and then unanimously by a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit, including a Republican appointee.
The justices ruled that, contrary to Meese and others’ arguments, Mueller is a “low-level” official whom the attorney general has the legal power to appoint. He is a low-level official, they said, because he is “serving at the pleasure of an executive branch official appointed with the advice and consent of the Senate.” In the Senate case, the acting attorney general could fire the special counsel.
These decisions are not Supreme Court decisions and therefore are not binding on Cannon, but they suggest this has not been a close call for the justices so far. Nevertheless, she decided to hold an unusual, high-profile hearing on the issue.
The question then becomes whether the historically conservative Supreme Court will ultimately take the issue seriously, as Justice Thomas might if it ever gets to that stage. The Court upheld special counsel powers in 1974 (Watergate) and 1988 (Iran-Contra), but those cases were decided at different times under different rules and are not entirely analogous.
Katie Harriger, a special counsel expert at Wake Forest University, said nothing can be ruled out.
Judging by precedent, “a judge well versed in the law would be quick to dismiss these claims, as would several other judges,” Harriger said, “but in the current political and legal climate, nothing is certain.”
She pointed to hints about Thomas’ position during oral arguments in the immunity case, as well as then-Court of Appeals Justice Brett M. Kavanaugh’s 2016 comment that he wanted to “put the final nail” in the coffin of the 1988 ruling. Morrison v. Olson. The ruling upholds the use of independent counsel under the Ethics in Government Act, and critics of Mueller and Smith’s appointments say the lapse in that law means special counsels like them will no longer be authorized.
“The Roberts Court’s current majority has generally opposed the appointment systems prevalent in the modern administrative state that limit presidential control over the executive branch,” Harriger wrote, adding that “while the law appears well-established in this area, it is uncertain whether this Court would consider a special counsel to meet the ‘low-level official’ requirement.”
“As has been made clear in other areas, adhering to past precedent for precedent’s sake is not a driving value of this Court.”
Critics of President Trump have criticized the Supreme Court for taking up Trump’s immunity claim after a unanimous appeals court rejected it in its entirety, a decision that significantly delayed the prosecution of Trump for the January 6 attack.
But in that case, the court seems inclined to impose guardrails on Trump rather than actually granting him immunity from prosecution — a potentially useful line of inquiry ahead of a possible second term for Trump that would further test the president’s limits.
The idea that the Supreme Court would rule that a president has complete immunity from criminal prosecution no matter what he does was always unrealistic.
But it doesn’t seem so extreme for the court to endorse the idea that Smith’s appointment was unlawful, and Cannon’s recent controversial decision shows what that outcome could be.
