How SCOTUS immunity ruling gives Judge Cannon argument to sink Mar-a-Lago docs case: experts

01 July 2024

Legal scholars have had a lot to say about the effect the U.S. Supreme Court's immunity ruling, handed down on Monday morning, July 1, will have on special counsel Jack Smith's election interference case against former President Donald Trump.

The High Court ruled, 6-3, that presidents enjoy immunity from prosecution for "official" acts committed in office but not for "unofficial" acts. And the justices left it up to the lower federal courts to determine which acts in Smith's case qualify as "official" and which are "unofficial."

There has been less discussion of the effect the ruling could have on the other Trump-related case Smith is prosecuting: the Mar-a-Lago documents case. But according to Law & Crime's Matt Naham, some views expressed by Justice Clarence Thomas in the immunity ruling could give Judge Aileen Cannon an argument for sinking that case.

"Legal experts believe the ruling all but guarantees there will be no trial before the 2024 election, throwing a major wrench into special counsel Jack Smith's (election) case and clouding it with uncertainty," Naham explains. "In a concurrence, which no other justice joined, Justice Clarence Thomas went a step further by strongly suggesting it his view that Jack Smith was unlawfully appointed as special counsel, giving Trump legal ammunition in undoing his Mar-a-Lago prosecution, where U.S. District Judge Aileen Cannon recently permitted pro-Trump amici curiae — Latin for friends of the court — to argue some of the very points Thomas made on Monday."

In the Mar-a-Lago documents case, Trump's legal team has been arguing that U.S. Attorney General Merrick Garland and the Department of Justice (DOJ) had no business appointing Smith as a special counsel without the U.S. Senate approving him. Smith has flatly rejected that argument, telling Cannon, in a court filing, that Garland was perfectly within his right to appoint a special counsel and did not need the Senate's permission.

"Thomas, who is the justice assigned to field emergency applications from the U.S. Court of Appeals for the 11th Circuit — which includes Cannon's jurisdiction — has definitively removed any doubt about his degree of interest in the question of the constitutionality of Smith's appointment," Naham emphasizes. "For Thomas, the attempted prosecution of Trump for official acts 'threaten our constitutional order.' But also of concern was the appointment of 'private citizen' Smith to embark on that mission."

Thomas, in the immunity ruling, questioned whether it was lawful for Smith to be appointed special counsel.

"If there is no law establishing the office that the Special Counsel occupies," Thomas wrote, "then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President…. No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes."

Thomas continued, "If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel's appointment before proceeding."

Thomas also wrote, "Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be."

Naham notes that although Cannon has yet to rule on "Smith's authority to prosecute," it is " worth watching how much of Thomas' concurrence features in the eventual ruling."

Read Matt Naham's full article for Law & Crime at this link.

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