Ashley Oliver writes for the Washington Examiner about one U.S. Supreme Court justice’s impact on the recent decision to dismiss charges against former President Donald Trump.
Judge Aileen Cannon repeatedly referenced Justice Clarence Thomas on Monday in her surprise decision to toss out former President Donald Trump’s classified documents case.
In her 93-page ruling, Cannon cited a concurring opinion Thomas wrote in the Supreme Court’s recent decision on presidential immunity, in which Thomas said congressional input is necessary for special counsel appointments.
Cannon ruled that Attorney General Merrick Garland unlawfully appointed Jack Smith as special counsel. The designation gave Smith the authority to conduct a sweeping investigation and prosecution of Trump largely independent of the rest of the Department of Justice.
Cannon noted how Thomas warned that the authors of the Constitution specified that the legislative and executive branches must both be involved in creating and filling offices like that of a special counsel to avoid concentrating too much power in one body.
She cited the conservative justice’s concurring opinion in the presidential immunity case three times, as well as two other opinions of Thomas’s.
Cannon ruled that the appointments clause of the Constitution requires the Senate to have confirmed a special counsel, similar to how the Senate confirms U.S. attorneys. As an alternative, Congress could pass a law creating the position and giving the authority to the president to fill it, Cannon wrote.
Prior to his appointment as special counsel, Smith worked at the DOJ as an acting U.S. attorney and later investigated and prosecuted Kosovo War crimes. Unlike many other special counsels, Smith has never served as a Senate-confirmed U.S. attorney, which means he has never been vetted by Congress.
Cannon’s decision, if it were to stand, would serve to discredit some past special counsel investigations, depending on which statutes they were authorized under.
