Could Judge Aileen Cannon gag Attorney General Garland? His remarkable appearance on national television to defend his appointment of Special Counsel Jack Smith is a newsworthy moment as Mr. Smith tries to put President Trump on trial in a federal courtroom. It comes after Judge Cannon dismissed the Mar-a-Lago charges against the 45th president. She finds that the prosecutor — Mr. Smith — lacks Senate confirmation.

It would be difficult to conjure a more stinging rebuke for the attorney general than to have his handpicked prosecutor judged to be acting ultra vires, or outside the bounds of the law. It was Mr. Garland, who, two days after Trump declared his candidacy for a second term, plucked Mr. Smith from The Hague and gave him power to prosecute the 45th president in any jurisdiction he chose. The attorney general called Mr. Smith the “right choice.” 

Scripture, though, teaches that pride goeth before a fall, and Mr. Garland’s boast that Mr. Smith’s appointment would “not slow the completion of these investigations” — meaning the January 6 and Mar-a-Lago ones — now appears saturated with irony. Mr. Garland told NBC that he reckons Judge Cannon made a “basic mistake” and referenced his 20 years on the bench of the D.C  Circuit, often considered America’s second most powerful.

In America, though, powers are separated. That principle was at the heart of Judge Cannon’s ruling that Mr. Garland overstepped his bounds by securing neither Senate confirmation nor explicit Congressional authorization for Mr. Smith. The attorney general, whom the Senate wouldn’t confirm for the Supreme Court, serves at the pleasure of the president. He is a member of the executive branch. No matter how august, he cannot command the judiciary.

It is not as if Mr. Garland’s record on constitutional matters is unblemished. This month, the Supreme Court ruled, by a six to three margin, that former presidents are entitled to immunity for official acts undertaken while in office. That ruling upended the January 6 case against Trump, and possibly the others as well. Now, the attorney general is yet again, this time in the court of Judge Cannon, trying to climb out of constitutional quicksand.

Mr. Garland’s question — “Do I look like someone who would make that basic mistake about the law?” — was accompanied by an explanation that the attorney general chose to be interviewed in the Department of Justice’s law library. He called it his “favorite room,” suggesting a greater familiarity with its precedents than Judge Cannon, who was appointed to the bench during the final days of Trump’s term, in 2020.*

What an extraordinary moment — a sitting attorney general, in the middle of a legal proceeding, belittling the federal judge in the case and suggesting that his reading of the law is more extensive than hers. And offering his remarks to defend his appointment of a prosecutor from whom he’s supposed to keep his distance. And who, in the case of Mr. Smith, has filed his notice of appeal with the United States Court of Appeals for the 11th Circuit.

Could Judge Cannon consider a gag order on Mr. Garland, even if the riders of the 11th Circuit vindicate his position that “every single court, including the Supreme Court, that has considered the legality of a special counsel appointment has upheld it”? Judge Cannon, though, found high court rulings in the matter to be less than legally binding. Justice Clarence Thomas, in the immunity case, at least, appears to agree in respect of special counsels.

Mr. Garland’s broadside against Judge Cannon brings into focus that Mr. Smith’s nominal independence from the Justice Department is just that. Constitutionally speaking, this is okay. The parchment ordains that the “executive Power shall be vested in a President of the United States.” That is Judge Cannon’s point. If Mr. Smith is to act independently, it seems to us that he needs an independent authority more than Mr. Garland’s say-so.

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* The library was previously used by two attorneys general — Michael Mukasey and Edwin Meese — who are now leading the challenge against Mr. Smith’s constitutional bona fides.