Following President Donald Trump’s decisive victory in both the electoral and popular vote, it’s becoming clear, based on multiple reports, that the weaponized Department of Justice (DOJ) is poised to dismantle its baseless and frivolous criminal prosecutions against Trump in Florida and Washington, D.C., and may even dismiss Jack Smith before Trump has the satisfaction to utter his most famous line, “you’re fired.”
While some might interpret this as Democrats waving the white flag in the face of Trump’s resurgence or as a premature gesture of goodwill, don’t be fooled. This move marks yet another self-serving, calculated maneuver, a legal sleight-of-hand designed to protect the reputations of Attorney General Merrick Garland, Smith, and former Special Counsel Robert Mueller and to distract from Smith and Mueller’s unconstitutional appointments.
Illegitimate Appointment
The illegitimacy of Smith’s appointment emerged this past summer, notably in Justice Clarence Thomas’s concurring opinion in United States v. Trump. Supplementing the court’s landmark opinion that extended presidential immunity to criminal cases — an extension that serious legal scholars saw as a natural evolution from the court’s decision in Nixon v. Fitzgerald — Thomas took his argument a step further, casting a glaring spotlight on the shaky foundation of the prosecutorial appointment.
Thomas underscored his point with a forceful reminder: “I write separately to highlight another way in which this prosecution may violate our constitutional structure. In 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.” His words laid bare a critical issue that cannot be ignored — the legitimacy, or lack thereof, of Smith’s appointment and the prosecutorial authority it supposedly confers.
Federal Judge Aileen Cannon, presiding over Smith’s contrived “documents case” against Trump in Florida, wasted no time taking Thomas’ cue. Within days, she dismissed the documents case outright, ruling it to violate the Constitution’s appointments clause.
Smith’s Precarious Position
In response, Smith scrambled to appeal to the 11th Circuit Court of Appeals, hoping to preserve a slim chance to plead his case before the Supreme Court if he lost in the appellate court. Had the election turned in the Democrats’ favor, Smith would have more time and might have bet on Chief Justice John Roberts or Justice Amy Coney Barrett — both known for occasional unpredictability — to break ranks and side with the court’s three liberals and side against Thomas.
However, since Election Day, the political landscape has changed dramatically, with the headwinds blowing powerfully against Smith and Garland and, by extension, against Mueller.
Now, Smith finds himself in a precarious position. The clock is ticking, and if he doesn’t dismiss the case and make a swift exit, he’s gambling with a legal risk akin to Russian roulette. The 11th Circuit could — and likely would, considering Thomas’ reasoning on the Appointments Clause — uphold Cannon’s ruling, affirming that Smith’s appointment lacks constitutional legitimacy. If the 11th Circuit rules against Smith now, there won’t be enough time for Smith to push his case to the Supreme Court and hope that Roberts and Barrett might join the court’s liberals to bail him out. Time is running out, and Smith’s options are shrinking fast.
Why does it still matter?
A federal court of appeals decision holds far greater weight than any district court ruling. As it now stands, Smith can still point to Cannon’s decision as an outlier — as Democrat Judge Tanya Chutkan in D.C. has refused to dismiss the Jan. 6 prosecution on similar constitutional grounds. However, if the 11th Circuit affirms Cannon’s ruling, the fallout might reach far beyond Smith, casting doubt not only on his legitimacy but on Mueller’s as well.
Mueller’s Appointment
There’s no legal distinction between Smith’s and Mueller’s appointments. The attorney general appointed them both without a specific enabling statute, years after the Independent Counsel Act expired. Thomas underscored this, emphasizing that the appointments clause of the Constitution mandates specific congressional legislation to justify the appointment of such inferior officers. Congress allowed the Independent Counsel Act to expire in 1999, but it has not renewed it since.
Mueller could be next in line if a federal appeals court invalidates Smith’s appointment under the appointments clause. Defendants such as Paul Manafort, Rick Gates, Gen. Michael Flynn, Roger Stone, George Papadopoulos, and others — swept up in Mueller’s investigation — would have grounds to vacate their convictions as the fruit of a constitutionally flawed appointment. Altogether, Mueller’s Russian investigation resulted in the indictment of 34 individuals and three companies, and multiple prosecutions. But if these convictions are based on an unconstitutional appointment, the entire operation could unravel, exposing the “Russia hoax” as a legacy of judicial overreach.
So far, Mueller has flown below the radar, with nobody talking about his unconstitutional appointment, and the DOJ needs to quit while it’s ahead. So, before the 11th Circuit strikes, the DOJ is trying to save face and hoping nobody catches wind that the DOJ deployed not just one but two illegally appointed special prosecutors to chase Trump and his friends. Otherwise, every conviction or plea deal secured under Mueller’s authority becomes constitutionally invalid.
The hasty moves by Garland and Smith to dismiss cases or even fire Smith now are no different than the German Army scrambling to burn classified papers in Berlin before the Allies arrived. This dismissal is a last-ditch attempt to cover their tracks, to deflect attention from an unconstitutional misuse of the special counsel’s office — under both Smith and Mueller — to illegally target individuals for political gain.
Smith and Garland might play dodgeball to avoid a negative 11th Circuit decision. Still, they nonetheless created a constitutional crisis, bastardized the federal courts, spent millions to weaponize the justice system, and must face full scrutiny. Those prosecuted by Mueller’s team deserve to have their convictions overturned and the records of those prosecutions vacated.
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