Numerous reports indicate that the weaponized Department of Justice ( DOJ) is poised to dismantle its baseless and frivolous criminal prosecutions against Trump in Florida and Washington, D.C., and may even dismiss Jack Smith before Trump can utter his most famous line, “you’re fired.
Do n’t be fooled, though some might interpret this as Democrats waving the white flag in response to Trump’s resurgence or as a a planned gesture of goodwill. This shift marks yet another self-serving, calculated movement, a constitutional sleight-of-hand designed to protect the identities of Attorney General Merrick Garland, Smith, and past Special Counsel Robert Mueller and to divert from Smith and Mueller’s illegal meetings.
Illegitimate Appointment
The legality of Smith’s visit emerged this previous summer, somewhat in Justice Clarence Thomas’s concurring opinion in United States v. Trump. Thomas went one step more, shining a spotlight on the shaky foundation of the judicial appointment, by supporting the court’s landmark opinion that extended political immunity to fugitive cases, an extension that significant constitutional scholars saw as a normal evolution from the court’s decision in Nixon v. Fitzgerald.
Thomas put the phrase” I write separately to show another way in which this trial may offend our constitutional framework” to the top of his argument. The Attorney General allegedly appoints a private member as Special Counsel to prosecute a former leader on behalf of the United States in this case. However, I’m not sure if any Particular Counsel’s company has been “established by Law,” as the Constitution requires. His words laid bare a critical matter that cannot be ignored — the legality, or absence thereof, of Smith’s visit and the legal authority it presumably confers.
Federal Judge Aileen Cannon, presiding over Smith’s contrived “documents case” against Trump in Florida, wasted no time taking Thomas ‘ cue. Within days, she dismissed the documents case outright, ruling it to violate the Constitution’s appointments clause.
Smith’s Precarious Position
In response, Smith made a desperate appeal to the 11th Circuit Court of Appeals in an effort to avoid losing in the appellate court. Smith would have had more time to join the ranks and bet on Chief Justice John Roberts or Justice Amy Coney Barrett, both of whom are known for their unpredictability, to challenge the court’s three liberals and oppose Thomas had the election turned in favor.
However, since Election Day, the political landscape has changed dramatically, with the headwinds blowing powerfully against Smith and Garland and, by extension, against Mueller.
Now, Smith finds himself in a precarious position. The clock is ticking, and if he does n’t dismiss the case and make a swift exit, he’s gambling with a legal risk akin to Russian roulette. The 11th Circuit could — and likely would, considering Thomas ‘ reasoning on the Appointments Clause — uphold Cannon’s ruling, affirming that Smith’s appointment lacks constitutional legitimacy. There wo n’t be enough time for Smith to file his case with the Supreme Court and rely on Roberts and Barrett to convince the court’s liberals to let him go. Time is running out, and Smith’s options are shrinking fast.
Why does it still matter?
Unlike any district court decision, a decision from the federal court of appeals has much greater weight. Smith can still see the appeal of Cannon’s decision as an anomaly because Democrat Judge Tanya Chutkan in Washington has rejected the Jan. 6 case on similar constitutional grounds. However, if the 11th Circuit affirms Cannon’s ruling, the fallout might reach far beyond Smith, casting doubt not only on his legitimacy but on Mueller’s as well.
Mueller’s Appointment
There’s no legal distinction between Smith’s and Mueller’s appointments. Years after the Independent Counsel Act expired, the attorney general appointed them both without a specific enabling statute. Thomas emphasized the importance of the Constitution’s appointment clause, which requires a specific piece of congressional legislation to support the appointment of such subpar officers. The Independent Counsel Act was authorized by Congress in 1999, but it has n’t been renewed since.
If Smith’s appointment is invalidated by a federal appeals court under the appointments clause, Mueller might be the next in line. Defendants such as Paul Manafort, Rick Gates, Gen. Michael Flynn, Roger Stone, George Papadopoulos, and others — swept up in Mueller’s investigation — would have grounds to vacate their convictions as the fruit of a constitutionally flawed appointment. Altogether, Mueller’s Russian investigation resulted in the indictment of 34 individuals and three companies, and multiple prosecutions. But if these convictions are based on an unconstitutional appointment, the entire operation could unravel, exposing the” Russia hoax” as a legacy of judicial overreach.
So far, Mueller has flown below the radar, with nobody talking about his unconstitutional appointment, and the DOJ needs to quit while it’s ahead. The DOJ is attempting to save face by avoiding the 11th Circuit by using two illegally appointed special prosecutors to pursue Trump and his friends, so the DOJ is trying to save face before the 11th Circuit arrives. Otherwise, every conviction or plea deal secured under Mueller’s authority becomes constitutionally invalid.
Prior to the arrival of the Allies, the German Army scrambling to burn classified documents in Berlin no longer follows Garland and Smith’s quick decisions to dismiss cases or even fire Smith. This denial is a last-ditch attempt to cover up their tracks, aimed at deflecting attention from an unlawful misuse of the special counsel’s office by both Smith and Mueller to unlawfully harm people for political gain.
To avoid a negative 11th Circuit decision, Smith and Garland might engage in dodgeball. Still, they nonetheless created a constitutional crisis, bastardized the federal courts, spent millions to weaponize the justice system, and must face full scrutiny. Mueller’s team’s prosecutors deserve to have their convictions overturned and those prosecution records vacated.
