CERL’s Claire Finkelstein spoke with media about U.S. District Judge Aileen Cannon’s ruling to dismiss Special Counsel Jack Smith from former President Donald Trump’s classified documents case.
Cannon, who was appointed to the bench by Trump, issues her ruling following Judge Clarence Thomas’s recent assertion that the appointment of Smith was unconstitutional:
“This stems from the separate concurrence that was written by Justice Thomas in the immunity case, in which he said that the entire appointment of Jack Smith was unconstitutional under the Appointments Clause. That was not a view that was shared by any of the other justices. Here, she [Judge Aileen Cannon] took a very fringe view, a view that conservatives have been touting for a long time, to say that the appointment of a special counsel was unconstitutional in this case. What needs to be clear, however, that we did not hear Justice Thomas or conservatives in general, objecting to the appointment of John Durham, who was special counsel to look into the origins of the Russia case, nor did we hear them objecting to the appointment of special counsel in the Hunter Biden matter. So, suddenly, this becomes a view that is being used to eliminate special counsel in the case of Donald Trump. It’s not a view shared by the other judges who have been presiding over the other case – the January 6 case, that is being addressed, except for Justice Thomas.”
Finkelstein argues that the decision will definitely be appealed and that, depending on the timing, it could end up before the Supreme Court where anything could happen:
” This will now go up to the 11th Circuit presumably and I have full confidence the 11th Circuit will restore the case and these charges, but the question will be: 1. Whether it then goes up to the Supreme Court, and 2. If not, and it goes directly to the lower court on remand, whether it goes back to Judge Aileen Cannon or whether it goes to a different judge. I could imagine Justice Thomas convincing his fellow justices to side with him on the Appointments Clause matter, which would then knock out the January 6th prosecution as well, whatever is decided in the lower court by Tanya Chutkan. I would also stress how profoundly wrong the decision is, given the long, long history of appointing special counsel.”
Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and Faculty Director of the Center for Ethics and the Rule of Law. Read her bio here.
The views expressed here are the author’s own and do not necessarily represent those of any organization or university.