Future of special counsels uncertain after Cannon and SCOTUS rulings: ex-federal prosecutor

Many of Donald Trump's critics in the legal world have been railing against two recent rulings. One is the U.S. Supreme Court's controversial 6-3 presidential immunity decision in Trump v. the United States; another is Judge Aileen Cannon, a Trump appointee, throwing out special counsel Jack Smith's Mar-a-Lago documents indictment.

Trump's legal team claimed that U.S. Attorney General Merrick Garland lacked the authority to appoint Smith as a special counsel without him being approved in a U.S. Senate vote — and therefore, the entire case was invalid. Cannon agreed with that reasoning and dismissed the case entirely.

In an article published by the conservative website The Bulwark on July 25, law professor and former federal prosecutor Kimberly Wehle stresses that the future of special counsels is very much in question after the High Court and Cannon rulings.

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"When U.S. District Judge Aileen Cannon dismissed the classified-documents case against Donald Trump," Wehle explains, "she didn't only give a boost to the Republican presidential candidate. If her decision is not overturned, Cannon — along with the U.S. Supreme Court, via its recent ruling on presidential immunity — may have destroyed the foundations of independence for federal prosecutors, rendering the concept of a special counsel all but obsolete."

Wehle argues that although Smith is right to appeal Cannon's ruling, the High Court's Trump v. the United States ruling endangers special counsels in general.

"The entire notion of a special counsel could become an arcane footnote of legal history," Wehle warns. "The Court turned the very purpose of appointing an independent prosecutor on its head."

Wehle notes that the Trump v. the United States ruling is very much at odds with the High Court's 1988 ruling in Morrison v. Olson, which upheld the validity of independent counsels.

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"The Court's decision in Trump v. U.S. last month upended the Morrison theory," Wehle laments. "The majority in Trump specifically held that discussions between presidents and attorneys general are completely immune from criminal scrutiny — even if they are part of the commission of a federal crime."

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Kimberly Wehle's full article for The Bulwark is available at this link.