Lawyers for special counsel Jack Smith and Donald Trump filed a joint status report in the federal election interference case Friday, explaining how each side wants to proceed after the Supreme Court sent the case back to U.S. District Judge Tanya Chutkan. The high court returned the case for Chutkan to apply the justices’ new immunity test to Trump’s charges, but the former president’s lawyers are also pressing a separate issue that could complicate the case even further: the legality of Smith’s appointment and funding of his prosecution.
In part of the filing that lays out Trump’s stance, it says:
As a threshold matter, President Trump will move to dismiss the Special Counsel’s improper appointment and use of non-appropriated funds — issues that a Supreme Court justice describes as ‘serious questions’ that ‘must be answered before this prosecution can proceed’ … and which a District Court has found dispositive …
That justice and district court judge are Clarence Thomas and Aileen Cannon, respectively.
Thomas joined Chief Justice John Roberts’ July 1 majority opinion granting broad criminal immunity for presidents. But the Republican appointee also wrote a separate, concurring opinion in which he questioned the constitutionality of Smith’s appointment. It’s that concurring opinion to which Trump’s lawyers referred in that passage.
Just a couple weeks after the immunity ruling, Cannon (a Trump appointee) cited Thomas’ concurrence in dismissing Trump’s classified documents indictment.
Smith is separately challenging Cannon’s dismissal to the 11th U.S. Circuit Court of Appeals. He told the appeals court in his brief that Cannon’s outlier opinion bucked “an otherwise unbroken course of decisions, including by the Supreme Court” and “is at odds with widespread and longstanding appointment practices in the Department of Justice and across the government.” There isn’t a deadline for the circuit court to rule, but the issue could wind up before the Supreme Court no matter what the appeals court decides. When Cannon dismissed the case, one of the questions raised by that decision was whether Trump’s other federal case could be in danger as well due to the appointment issue. And now Trump’s lawyers are pressing that argument in Washington, D.C., too. A status conference set for Thursday may tell us more about Chutkan’s thinking on the matter and how she’ll seek to move the case forward generally. Neither Thomas’ lone concurrence nor Cannon’s trial-level ruling in a separate jurisdiction is binding on Chutkan. But if Trump loses the presidential election in November (if he wins, the federal cases are probably gone), the appointment issue may be another wrinkle that the Supreme Court will need to iron out before any federal Trump trials can proceed. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
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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