Wrongly appointed

MARY REICHARD, HOST: It’s Tuesday the 16th of July. This is WORLD Radio and we’re glad to have you along with us today. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Up first on The WORLD and Everything in It: case dismissed.

President Trump’s legal team is on a roll. It won a big Supreme Court case two weeks ago on presidential immunity, and now the team has persuaded a federal judge to toss out the entire classified-documents case. Yesterday, U.S. District Judge Eileen Cannon ruled that special counsel Jack Smith was wrongly appointed and that has the effect of invalidating his prosecution of Trump, at least for now.

REICHARD: Here to talk about it is Daniel Suhr. He is an attorney and regular contributor to WORLD Opinions. Daniel, Judge Cannon dismissed the case under the Appointments Clause of the Constitution, ruling he was not authorized to conduct this prosecution. How so?

DANIEL SUHR: So it starts with this simple structural feature of the Constitution that when executive officers exercise power, they need to be responsible to the President. And in particular, if officers are going to exercise significant power, they need to be confirmed by the Senate. That's just written into the Constitution. And so in the case of prosecutors, we have 93 United States attorneys. And U.S. Attorneys are appointed by the President and confirmed by the Senate to be the chief prosecutor for each region of the United States. Some states have one, some states have a couple. What the special counsel regulation does is go around the U.S. Attorney process. It essentially says, I, as the attorney general, I as Merrick Garland, am going to circumvent the normal process for prosecuting someone, empowering someone with prosecutorial authority, and instead, I'm just going to pick. And I'm not going to pick without checking with the President first. I'm not going to check with the Senate first. I'm going to give the same power a U.S. attorney has to this individual, but I'm not going to follow the same process, and that's the problem.

REICHARD: So, talk specifically how Jack Smith’s appointment as Special Counsel fell short?

SUHR: Yeah, so Jack Smith was appointed by Attorney General Merrick Garland to look into former President Trump in this and several other cases. But there's no statute authorizing that sort of appointment. In fact, if you remember Mary, we used to have an Independent Counsel statute back in the 1990s and that was what Ken Starr and the various other Clinton investigations took under.

REICHARD: And that was allowed to expire because it didn’t work well.

SUHR: Congress looked back at what happened with President Clinton and said this was not a good process, and yet, now Attorney General Merrick Garland is acting like, well, I'll just call it a "special counsel" rather than an independent counsel, and it'll do the same thing. And all Judge Cannon is saying is, no, you can't circumvent the structure and policy decisions that Congress has made.

REICHARD: So the documents case is dismissed, future hearings are all canceled. Daniel, does this dismissal affect the other Jack Smith prosecution in D.C. about January 6?

SUHR: It does not formally affect it, but it certainly sets a precedent that applies across the board, if other judges agree with Judge Cannon. I think it's interesting in this instance that Justice Clarence Thomas in his opinion in the in the first Jack Smith immunity case, the immunity case the Supreme Court decided just a few weeks ago, Justice Thomas has a concurring opinion where he says, before we even address the question of presidential immunity, which is what the rest of the Supreme Court focused on. I have a separate problem, namely, I don't think Jack Smith was appointed in the constitutional manner. I don't think he his appointment complies with the appointments clause. And so Justice Thomas had already previewed this problem several weeks ago, and I think it indicates that ultimately this will be an issue that heads the US Supreme Court. The U.S. Supreme Court is aware of this problem. Judge Cannon's opinion will presumably be appealed. There may be a difference of opinion between the 11th Circuit, which is the geographic region that covers Judge Cannon in Florida, and the DC Circuit, which covers the January 6 prosecution that Jack Smith is bringing. And so ultimately, I would not be surprised if all these issues don't percolate back to the Supreme Court for another decision on Trump versus Jack Smith.

REICHARD: Daniel Suhr is an attorney and regular contributor to WORLD Opinions. Daniel, thank you for your time!

SUHR: Thanks for having me, Mary.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.