Author: Frank V. Vernuccio, Jr.

The disappointing July Jobs Report revealed that unemployment rose to 4.3.%

House Ways and Means Committee Chair Jason Smith  (R-MO) outlined how the situation is even worse than the numbers indicate.

Since the start of the Biden-Harris Administration in January 2021, 1.8 million more Americans have had to take multiple jobs. In July, another 33,000 Americans took on second or third jobs. Over the last year, 508,000 full-time jobs have been replaced with 548,000 part-time jobs. 

Of the relatively few full time jobs that were actually created, (particularly considering that the nation’s economy was coming out of Covid) many were government positions which draw from, rather than add to, the national economy. Since the Biden-Harris Administration began, 30 percent of new jobs have come from hiring for government salaries. In July, government agencies added 17,000 to taxpayer-funded payrolls. 

Chairman Smith examined the type of jobs that ar essential to the U.S. middle class, and found depressing results. In the last year, American manufacturers have added only 14,000 total jobs. In July, manufacturers added just 1,000 jobs following an 8,000 cut in June.

The Jobs Report was just one analysis of an economy in distress. The Ways and Means committee chair added the following indicators:

Families Falling Behind on Bills: Over one-third of families (37 percent) paid a late fee in the past year.

Everything Costs More: Prices have increased 20.1 percent since the beginning of the Biden-Harris Administration. 

Americans Making Less: Real wages and benefits have fallen 3.6 percent since the beginning of the Biden-Harris Administration.

Inflation Above Fed’s Target: For 39 straight months, inflation has been above the Federal Reserve’s 2 percent target.

Inflation Higher Than Wages: Inflation outpaced wages for 26 straight months under the Biden-Harris Administration.  

Historic Interest Rates: Under the Biden-Harris Administration, interest rates hit their highest levels in 23 years.

Nearly Doubled Mortgage Costs: The monthly mortgage payment for a median priced new home has increased by $1,027 and is 91 percent higher than when President Biden and Vice President Harris took office in January 2021.

$1 Trillion+ Credit Card Debt: Credit card interest rates are at the highest level in more than three decades, while consumer credit debt has exceeded $1 trillion for the second calendar quarter and the number of Americans struggling to pay credit card bills has increased to the highest level in 12 years.

Shrinking Savings: Thanks to higher prices, families have spent the entirety of their pandemic savings by 2024, and they are able to save less of their income. At 3.4 percent, the personal savings rate is near its historic lows. 

Families Falling Behind on Bills: Over one-third of families (37 percent) paid a late fee in the past year.

An Investopedia analysis also provided a worrisome outlook. “Three separate reports delivered downbeat surprises. Construction spending fell in June for the second month in a row, dropping 0.3%, the Census Bureau said. Forecasters had expected a 0.2% increase instead, according to a survey of economists by Dow Jones Newswires and the Wall Street Journal.”

In terms of the overall American economy, The Congressional Budget Office has published worrisome data. the federal budget deficit in fiscal year 2024 is $1.9 trillion. Adjusted to exclude the effects of shifts in the timing of certain payments, the deficit amounts to $2.0 trillion in 2024 and grows to $2.8 trillion by 2034. With such adjustments, deficits equal 7.0 percent of gross domestic product (GDP) in 2024 and 6.5 percent of GDP in 2025. … By 2034, the adjusted deficit equals 6.9 percent of GDP—significantly more than the 3.7 percent that deficits have averaged over the past 50 year.

Illustration: Pixabay

The United States is not prepared to fight a significant war. That’s the well-researched opinion of the RAND corporation-organized report

of the Commission on the National Defense Strategy, which noted that America hasn’t been prepared for a major conflict since the end of the Cold War nation was last prepared for such a fight during the Cold War, which ended 35 years ago. It reports that the U.S. “is not prepared today. China and Russia are major powers that seek to undermine U.S. influence.”

The Commission found that The United States confronts the most serious and the most challenging threats since the end of World War II. “China and Russia’s “no-limits” partnership, formed in February 2022 just days before Russia’s invasion of Ukraine, has only deepened and broadened to include a military and economic partnership with Iran and North Korea, each of which presents its own significant threat to U.S. interests. This new alignment of nations opposed to U.S. interests creates a real risk, if not likelihood, that conflict anywhere could become a multitheater or global war.”

The threat of a multi-theater conflict was deeply sharpened by the decision of the Obama Administration to eliminate the capability to fight in two areas simultaneously.

The United States could in short order be drawn into a war across multiple theaters with peer and near-peer adversaries, and it could lose. The current National Defense Strategy (NDS), written in 2022, does not account for ongoing wars in Europe and the Middle East and the possibility of a larger war in Asia. Continuing with the current strategy, bureaucratic approach, and level of resources will weaken the United States’ relative position against the gathering, and partnering, threats it faces.

To address the crisis, representing a dire threat to American national security, the Commission “recommends a sharp break with the way the U.S. Department of Defense (DoD) does business and embraces an “all elements of national power” approach to national security. It recommends spending smarter and spending more across the national security agencies of government.”

The Commission warned that “The United States was slow to recognize the threat of terrorism before 2001 and late to understand the rising strength of China and the renewed menace posed by Russia.”  It urged that “the time to make urgent and major change is now. That change will mean fundamental alterations to the way DoD operates, the strategic focus of other government agencies, and the functionality of Congress, as well as closer U.S. engagement with allies and mobilization of the public and private sectors.” 

According to research, the problem is actually getting worse.

China’s dramatic increase in military strength and aggressiveness is a key concern. The Report notes that “…in many ways, China is outpacing the United States and has largely negated the U.S. military advantage in the Western Pacific through two decades of focused military investment. Without significant change by the United States, the balance of power will continue to shift in China’s favor. China’s overall annual spending on defense is estimated at as much as $711 billion,2 and the Chinese government in March 2024 announced an increase in annual defense spending of 7.2 percent.”

 Combined with its power ally in Moscow, the danger to the U.S. is clear. The Commission states that “Russia will devote 29 percent of its federal budget this year on national defense as it continues to reconstitute its military and economy after its failed initial invasion of Ukraine in 2022.  Russia possesses considerable strategic, space, and cyber capabilities and under Vladimir Putin seeks a return to its global leadership role of the Cold War.”

The U.S. Defense Department has been criticized for the way it does business. The researchers found that it is overly bureaucratic and slow to respond to the expanding and changing challenges the nation faces.

The problem is deeper than the forces currently existing. The defense budget itself is grossly inadequate. In addition, America’s defense industrial base manufacturing capability, which was the key to the allied victory in World War 2, must be restored to a size and capability sufficient to meet the challenge.

The stunning danger America faces from its shriveled military capability is truly a crisis of the highest order that must be immediately addressed.

Photo: Chinese sailors board the Russian naval corvette Gromkiy for a visit during the China-Russia joint naval exercise coded Exercise Joint Sea-2024 on July 13, 2024. (eng.chinamil.com.cn/Photo by Luan Cheng)

China is experiencing its largest population decline in more than sixty years. There is no turnabout in its public policy that can change the direction of the expected net decline, despite people living longer and having an improved health care system over the one that existed during the Great Leap Forward famine in the 1959-61 period. During those years demographers estimate China lost 3%-7% of its entire population. During the last 30 years, average life expectancy in China increased by 10 years. Yet the “replacement level,” unlike its economic expansion, has not kept up with the number needed to ensure the country can continue on its modernization program. The result of the failed One Child Policy will have a lasting impact for generations. China is in a desperate predicament and, as a result, is a dangerous nation-state that could destabilize the international world order.

For President Xi Jinping it means the Chinese Communist Party (CCP) will likely encounter potential economic destabilization and domestic political challenges that may be hard to surmount. At the same time, Xi must personally work to ensure his legacy is viewed positively in Chinese history books. In the coming 75 years China could lose more than 45% of its population. By the year 2100 China’s entire population could shrink to 649 million. In contrast, in 2015, 649 million accounted for just the number of active Internet users in the country! Today consumption levels, health indicators, and educational attainment levels offer the basis for a sober assessment of China’s future.

China is feeling the demographic pinch at the same time as its hyper-economic growth is plateauing. Recent data, for example, indicate that China is no longer a leading country in the semiconductor value chain. The United States, South Korea, Japan, and Taiwan are the leaders in research and development in the field. Japan, South Korea, and Taiwan lead in silicon wafer production and processing, while the Netherlands, Japan and the United States lead in semiconductor equipment manufacturing. China no longer makes any of the hi tech lists.

China’s “three-D’s,” (debt, deflation, and demography) are interacting to exacerbate government planning challenges. The CCP faces a shrinking and aging labor force in the country. That translates to fewer buyers for the domestic real estate market. According to Wang Fang, writing in the Wilson Quarterly recently, “Local governments used to rely heavily on land sale and real estate development for its revenues and to pay off debts.” The cooling real estate market results in reduced revenue for local governments while the country is simultaneously experiencing increased costs for health care and pension payouts.

“Concerns for old age support, without an adequate and equitable social safety net, could further dampen consumer spending. Unlike debt and deflation, for which the government has policy tools at its disposal, there has been no effective measures to turn the demographic tide,” says Wang. 

According to Beijing’s official college enrollment numbers, the total student body in 2024 increased six-fold since 2015. While it is impressive that the percentage of college graduates increased from 3% in 1990 to more than 50% in 2020, the falling population data indicates that there will be openings in college for 100% of China’s entire current population in the coming decades. The equivalent would be if the United States had its entire population of over 325 million enrolled in college!

The era of 200-million Chinese women having only one child will haunt the country for more than the next 100 years. The 40-year-long, “one-child generation” will soon face caring for the country’s aged along with their associated increased medical needs. Xi’s legitimacy, and his legacy, will be determined by how he addresses the demographic nightmare created by the Chinese Communist Party.  

Social spending on benefits has more than doubled from 6.1% in 2007 to 13% in 2020, outpacing even increases in China’s defense spending. The per person working population tax burden will increase dramatically in the coming decades. Within 25 years, estimates indicate that over 30% of China’s GDP will be needed to support social benefit programs. That amount is equivalent to China’s entire GDP today.

Xi Jinping will need to take drastic action to ensure political and economic stability in the country in the coming years. At present he appears to be using increases in crackdowns on freedom and dissent to quell unrest. There is another option. It could open a window in which China is forced to move closer to the West to ensures its survival. While the country’s future is yet to be written, the quantitative data are pretty clear about what China will look like in the coming years.

Daria Novak served in the U.S. State Dept.

Photo: Pixabay

To be clear, Chief Justice Roberts views acts like discussions with the Justice Department and Attorney General as covered by absolute immunity, not sending Seal Team 6 to assassinate the President’s political enemies.

Chief Justice Roberts then describes a second tier of immunity: “the Court concludes that the separation of powers principles explicated in the Court’s precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution. At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

Using this reasoning, Chief Justice Roberts explains which allegations from Jack Smith’s January 6 indictment would fit under this tier; “The indictment next alleges that Trump and his co-conspirators ‘attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results’…[i]n particular, the indictment alleges several conversations in which Trump pressured the Vice President to reject States’ legitimate electoral votes or send them back to state legislatures for review.”

The Court continues; “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President.”  Therefore, “[t]he indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct.” 

However, in this instance, “Trump is at least presumptively immune from prosecution for such conduct. The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity. The Court therefore remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

With these words, Chief Justice Roberts creates a review process that will be necessary whenever a President invokes immunity.  Courts will now be required to determine if the President’s actions are entitled to absolute immunity, or if there is only a presumption of immunity, a presumption which can be rebutted.

This is a crucial distinction to understand.  If the President of the United States sends Seal Team 6 to assassinate a political rival, under a Tier Two analysis, perhaps the President might be entitled to a presumption of immunity, but such a presumption would be quickly rebutted by the facts.  Meanwhile, if a President merely discusses sending Seal Team 6 to commit such a heinous act of political violence, that conversation would be immune from prosecution under Tier One.  

The idea of a President discussing the use of military forces in such a way is clearly disagreeable to most reasonable minds.  But discussion and debate of all options is a necessary element of any executive’s exercise of power.  This is something Jack Smith has never accepted, and as described in my book. The Making of a Martyr, an Analysis of the Trump Indictments, Chapter 14, Smith has attempted to criminalize every discussion former President Trump ever had with his staff, the Justice Department and other elected officials that questioned whether there was voter fraud present in the 2020 election.

Smith’s indictment failed to describe whether Donald Trump’s actions were taken in his official capacity as President, whether those actions were presumptively immune. and what facts would rebut that presumption of immunity.  Therefore, the indictment must be reviewed by the lower Court (federal judge Tanya Chutkin) who is to make these determinations. “On remand,” the Supreme Court states, “the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.”

The third tier of analysis is very simply stated; “As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct…[t]he separation of powers does not bar a prosecution predicated on the President’s unofficial acts.”

Here again, remand for review by the lower court is necessary. For instance, “[t]he indictment also contains various allegations regarding Trump’s conduct in connection with the events of January 6 itself. The alleged conduct largely consists of Trump’s communications in the form of Tweets and a public address…[t]here may…be contexts in which the President speaks in an unofficial capacity – perhaps as a candidate for office or party leader..[w]hether the communications alleged in the indictment involve official conduct may depend on the content and context of each. This necessarily factbound analysis is best performed initially by the District Court.”

Can we expect Judge Chutkin to perform the necessary analysis of Jack Smith’s indictment in a fair and impartial fashion?  Probably not.  As is also described in The Making of a Martyr, at Chapter 16, Chutkin has previously blamed Donald Trump for the actions of the January 6 protestors she has sentenced to extensive jail terms.  The likelihood that she will suddenly give the former President a fair hearing is low.

However, it is obvious that Jack Smith’s “January 6” indictment cannot go forward in its present form.  For all intents and purposes, this indictment has now been rendered irrelevant.

Judge John H. Wilson (ret.) served on the bench in NYC

Photo: Pixabay

In a decision with far-ranging repercussions, the United States Supreme Court has decided that the American President is to receive “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.”

For much of the left, their analysis of this opinion stops here.  According to President Biden, “[w]ith [this] decision on presidential immunity…for all practical purposes…there are virtually no limits on what a president can do. This is a fundamentally new principle, and it’s a dangerous precedent because the power of the office will no longer be constrained by the law, even including the Supreme Court of the United States.  The only limits will be self-imposed by the president alone.” 

  Then there is the view of Thomas Wolf, the Director of Democracy Initiatives; “In a shocking and lawless opinion, the Supreme Court granted presidents broad protections from criminal prosecution for ‘official acts’ they undertake while in office. This ruling from the Court’s conservative supermajority pulls a new constitutional rule from thin air. And it raises daunting, unjustifiable barriers to criminally prosecuting lawbreaking presidents. Trump is now positioned to renew his push to dismiss the charges against him and evade accountability for the grave crimes he’s accused of committing against our democracy. The Court has left the rule of law in tatters — even as it looks the other way.” 

Even Justice Sotomayor believes this decision to be dangerous.  In her dissent, the “wise Latina” wrote “[t]he President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Strong words.  But is this an accurate analysis of Chief Justice Robert’s opinion in Trump v. United States?

Of course not.  While these overwrought statements may constitute dire warnings of potential Presidential misconduct, there is plenty of guidance provided in the majority opinion for future criminal prosecutions of the President of the United States were he to act in such an illegal fashion.

Chief Justice Roberts sets up a three tiered analysis of Presidential claims of immunity.  The first tier consist of acts that involve the President’s “core constitutional powers” for which “immunity must be absolute.” 

 “Article II of the Constitution vests ‘executive Power’ in ‘a President of the United States of America, ‘” Chief Justice Roberts writes. “The President has duties of ‘unrivaled gravity and breadth’…[when] the President exercises such authority, Congress cannot act on, and courts cannot examine, the President’s actions. It follows that an Act of Congress – either a specific one targeted at the President or a generally applicable one – may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”

What exercise of power does Chief Justice Roberts contemplate as being covered under this form of immunity?  The Court uses an example from Jack Smith’s “January 6” prosecution in Washington DC federal district court (the case under consideration by the Supreme Court); “The indictment alleges that…Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud. The indictment further alleges that after the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him.”

“The[se] allegations… plainly implicate Trump’s ‘conclusive and preclusive’ authority,'” the Chief Justice writes. “The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.” Further, “the President’s ‘management of the Executive Branch’ requires him to have ‘unrestricted power to remove the most important of his subordinates’ – such as the Attorney General – ‘in their most important duties.’”

“The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” the opinion states.  On this basis, “the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

Judge John Wilson’s (ret.) article concludes tomorrow

Illustration: Pixabay

Key branches of the federal government, including the Department of Defense, the Federal Bureau of Investigation, and the Cybersecurity and Infrastructure Security Agency are sounding major warnings about America’s vulnerability to infrastructure attacks, particularly from China.

FBI Director Christopher Wray and national security experts warn that national infrastructure a risks the government of China poses to U.S. national and economic security are “upon us now”—and that U.S. critical infrastructure is a prime target. 

“The PRC [People’s Republic of China] has made it clear that it considers every sector that makes our society run as fair game in its bid to dominate on the world stage, and that its plan is to land low blows against civilian infrastructure to try to induce panic and break America’s will to resist,” Wray notes.

The FBI states that the overall threat from the Chinese Communist Party (CCP) is a hybrid one that involves crime, counterintelligence, and cybersecurity—and which the FBI is countering with resources from all three missional spheres, Wray said.  He emphasized that The threat is partially “driven by the CCP’s aspirations to wealth and power… China wants to seize economic development in the areas most critical to tomorrow’s economy,  even if doing so requires theft. The Chinese government has tried to pilfer intellectual property, technology, and research from nearly every industry in the U.S. economy.”

Wray reports that “the immense size—and expanding nature—of the CCP’s hacking program isn’t just aimed at stealing American intellectual property. “It’s using that mass, those numbers, to give itself the ability to physically wreak havoc on our critical infrastructure at a time of its choosing.” 

The Chinese have  pre-positioned themselves to potentially mount cyber offenses against American energy companies.

The Department of Defense also is issuing warnings about Beijing’s assaults. In May, it released a statement noting that “We know that the People’s Republic of China and Russia are actively targeting U.S. critical infrastructure to be poised to disrupt our society and interfere with DoD’s operations in a crisis.”

The Cybersecurity and Infrastructure Security Agency (CISA)   explains that there are 16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.

The  numerous areas vulnerable to attack include Chemical plants, commercial facilities, communications, critical manufacturing, dams, the defense industrial base, and emergency services.

In a bizarre 2022 move, the Biden Administration ended a key anti-espionage program known as the China Initiative, launched by the Trump administration to fight Chinese espionage and intellectual property theft. The move, which furthered the vulnerability of American infrastructure, was condemned in Congress and in think tank reports.

Rep. Andy Biggs (R-Arizona) in a 2023 published editorial complained that Biden also did not respond to an increased Beijing espionage effort based in Cuba. “It has recently been revealed that China has embedded an anti-U.S. espionage facility in the nearby island nation of Cuba. [President Biden] is allowing China to get a surveillance foothold 100 miles off the U.S. coast.”

A Heritage analysis noted that “Chinese espionage and covert influence are likely only to increase as the U.S. government becomes less and less inclined to take bold action in advance of an election. China recruits spies inside the United States…Chinese hackers have penetrated the networks of U.S. critical infrastructure, giving China the ability to cripple power, water, and communications to American military bases in a time of crisis. How has the Biden administration reacted? Last year, despite the realities of the espionage threat, Biden’s Justice Department shut down the China Initiative bowing to pressure from activists who said the initiative was inherently racist and xenophobic.”

Photo: CISA works with sector partners to protect assets from natural disasters, as well as human-caused and technological events. (CISA photo)

“The Motion before the Court challenges the legality of Special Counsel Smith,” Judge Cannon writes. “[The defense challenges Smith’s] appointment under the Appointments Clause, which provides the exclusive means for appointing ‘Officers of the United States’…[t]he Appointments Clause sets as a default rule that all ‘Officers of the United States’ – whether ‘inferior’ or ‘principal’ – must be appointed by the President and confirmed by the Senate…[i]t then goes on to direct that ‘Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in Heads of Departments.’”

Accepting Smith’s contention that he is an “inferior” officer, appointed by a “Head of Department,” Judge Cannon finds that there is no act of Congress which authorizes either Attorney General Garland to make this appointment or to establish the office of a Special Counsel. The challenge based upon the Appointments Clause “raise[s] the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment…gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith.”

“The bottom line is this,” Judge Cannon states. “The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history…or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.”

Since none of these methods were used to secure the appointment of Jack Smith as Special Counsel, Judge Cannon concludes, as Justice Thomas discussed, Smith’s appointment was illegal, and his actions to date have no legal authority.  Therefore, the indictment he filed against former President Trump in Florida federal court must be dismissed.

Besides Smith’s appeal of Judge Cannon’s decision to the Eleventh Circuit, we can expect Judge Chutkin in Washington DC to take up this issue as she conducts her review of the January 6 indictment.  However, based upon the bias Judge Chutkin has already exhibited against Donald Trump during the sentencing of a series of January 6 Capitol rioters (in which she bemoaned the fact that the person responsible for the riot was not before her to answer for his actions), we can expect Judge Chutkin to find a way to let Smith’s appointment stand.

More likely than not, the DC Court of Appeals will endorse whatever decision Judge Chutkin makes, as they have done in the past.  If the Eleventh Circuit upholds Judge Cannon’s decision, this will set up conflicting opinions between the Circuits. a situation the US Supreme Court usually resolves.  Even if the Eleventh Circuit does not uphold Judge Cannon’s decision, given the interpretation of the Constitution in question here, the Supreme Court is most likely to take up the issue.

We will then see if a majority of the Supreme Court agrees with the opinion expressed by Justice Clarence Thomas.

Judge John Wilson (ret.) served on the bench in NYC

Illustration: Pixabay

As we have discussed, the US Supreme Court recently decided the case of Trump v. United States.  There, in an opinion written by Chief Justice John Roberts, the Court outlined a three tier system to determine when the President acts with absolute immunity, when he acts with presumed immunity, and when he acts in his unofficial capacity and enjoys no immunity. 

Based upon this analytical structure, Jack’s Smith’s January 6 indictment was returned to Washington DC District Court Judge Tanya Chutkin for a review of the indictment, to determine which allegations involve the President’s unofficial acts, and which are entitled to presumptive immunity.

The majority opinion has had other repercussions.  In his opinion, Chief Justice Roberts ruled that Presidential acts that enjoy absolute immunity cannot be used as evidence against that same President in any criminal prosecution.  Based on this language, former President Trump’s attorneys filed a motion with Judge Juan Merchan to dismiss Donald Trump’s New York County conviction, since evidence of actions taken by the President in his official capacity were used against him at trial.

Recently, Judge Aileen Cannon has dismissed the case brought by Jack Smith in Florida federal court (the so-called documents case).   But this dismissal was not based on Chief Justice Roberts’ majority opinion in Trump v. United States.  Instead, Judge Cannon followed the reasoning of Justice Clarence Thomas, stated in his concurring opinion to Trump, to find that Special Prosecutor Jack Smith was never legally appointed to his office, and had no authority to indict or prosecute the former President. 

The reaction of Democrats to the dismissal of the case was predictable. “From ‘breathtakingly misguided’ to ‘unthinkable’, and ‘her audition for a seat on the US supreme court’, judge Aileen Cannon’s ruling…drew a range of outrage and surprise from Democrats and law experts…Among the loudest voices of Democratic protest was Chuck Schumer, the Senate majority leader, who called in a statement for the dismissal of Cannon, a Trump appointee to the federal bench in Florida.”

Naturally, Smith is appealing Judge Cannon’s decision.  But before that appeal is heard, let us review what Justice Thomas discussed and Judge Cannon decided.

“Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts,” Justice Thomas writes. “Fortunately, the Constitution does not permit us to chart such a dangerous course. As the Court [in its majority opinion] forcefully explains, the Framers ‘deemed an energetic executive essential to . . . the security of liberty,’ and our ‘system of separated powers’ accordingly insulates the President from prosecution for his official acts…I write separately to highlight another way in which this prosecution may violate our constitutional structure.”

According to Justice Thomas, “[i]n this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires…[t]he Constitution sets forth how an office may be created and how it may be filled. The Appointments Clause provides: ‘[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department’…[t]he constitutional process for filling an office is plain from this text.”

“[R]elevant here,” Justice Thomas states, “a ‘Hea[d] of Department’ – such as the Attorney General –  is one such actor that Congress may authorize ‘by Law’ to appoint inferior officers without senatorial confirmation…[b]efore the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be ‘established by Law.’”

Justice Thomas continues; “It is difficult to see how the Special Counsel has an office ‘established by Law,’ as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office…Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have..[n]one of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose.”

Therefore, “the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it ‘by Law.’” Justice Thomas emphasizes that this “is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is ‘the absolutely central guarantee of a just Government’ and the liberty that it secures for us all…[t]here is no prosecution that can justify imperiling it.”

In conclusion, Justice Thomas gave the lower court an assignment;  “[These] questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms.”  To date, Judge Chutkin has not taken up the analysis requested by either Justice Thomas or the majority opinion,  Instead, Judge Cannon in Florida was the first to act.

Judge Wilson’s article concludes tomorrow

Illustration: Pixabay