Justice Clarence Thomas helped Donald Trump get his classified documents case dismissed. Now the Republican presidential candidate’s lawyers want the same result in his other federal case, the one alleging 2020 election interference.
But they shouldn’t expect the same result — at least not at the trial level, or even at the first level of appeal.
When U.S. District Judge Aileen Cannon dismissed Trump’s documents case on July 15, on the grounds that special counsel Jack Smith was unlawfully appointed, the Trump appointee cited Thomas’ July 1 concurrence in Trump v. United States, the appeal in which the Roberts Court granted the former president broad criminal immunity in the federal election subversion case. The legality of Smith’s appointment wasn’t at issue in the immunity appeal, but Thomas still wrote separately to question it. That helped the Florida judge legally justify her ruling a couple of weeks later, which Smith is challenging at the 11th U.S. Circuit Court of Appeals. (Trump pleaded not guilty in both cases.)
His motion, filed Thursday with U.S. District Judge Tanya Chutkan in Washington, names Thomas 19 times.
With the election case back in the trial court, Trump is arguing that the high court ruling immunizes him from prosecution — and he’s also challenging Smith’s appointment. His motion, filed Thursday with U.S. District Judge Tanya Chutkan in Washington, names Thomas 19 times. Citing Cannon as well, Trump’s lawyers wrote that “a District Court issued a thorough and well-reasoned opinion that relied in part on Justice Thomas’s concurrence.”
But there’s precedent in the D.C. Circuit specifically blocking the appointment argument that Cannon endorsed. Supreme Court precedent arguably blocks it, too. But in the short term, D.C. precedent means that Trump’s appointment argument shouldn’t expect to go anywhere with Chutkan or on appeal in Washington. When it comes to both the Florida and D.C. cases, however, the Supreme Court can have the last word. True, it was only Thomas who raised the appointment issue in the immunity case. That could mean he’s the only one who cares about it, but we can’t be sure of that unless the issue were squarely presented to the justices. So Trump’s attempt to raise the issue in Washington is a reminder that, if he loses the election and thus the power to kill his federal cases, the appointment issue lurks in the cases until the Supreme Court weighs in (or decides not to). Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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