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
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