Special Counsel Jack Smith’s appeal of Judge Cannon’s disqualification of him from the Mar-a-Lago prosecution against President Trump could cede the case’s constitutional ground to the 45th president

That is the impression shared with the Sun by a legal scholar, Joshua Blackman, who argued before Judge Cannon that Mr. Smith was unlawfully appointed. That gap could be exploited by Trump in his own brief to the 11th United States appeals circuit. That court could overrule Judge Cannon or uphold her disqualification of Mr. Smith. Either way, the issue, on further appeal, could be ticketed to the Supreme Court.

Judge Cannon found for Trump because she determined that there was no statute that empowered Attorney General Garland to appoint the special counsel without nomination by the president and confirmation by the Senate. The Constitution ordains that “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 Departments.”

The judge, though, did not rule on whether the special counsel is actually an “inferior officer.” If he is not, then the clause mandates Senate confirmation. Mr. Smith opts against addressing that argument.  Instead he confines himself to arguing that Mr. Garland possessed the “statutory authority to appoint” him. Mr. Smith explains that the “district court accepted for purposes of its decision that the Special Counsel was an inferior officer.”

Mr. Smith’s decision to limit himself to the four corners of Judge Cannon’s ruling could be a savvy one — or a costly, even fatal, mistake. It offers the riders of the 11th Circuit the opportunity to reverse Judge Cannon — and return the case to her courtroom — without going out on a constitutional limb. Appellate jurists usually prefer to issue a narrow ruling to a wide-ranging one. The 11th Circuit has already reversed Judge Cannon once before, in respect of a special master.

The special counsel’s shyness on arguing on constitutional bedrock is replicated in respect of the Appropriations Clause. Judge Cannon writes that the money assigned to Mr. Smith’s office “violates the Appropriations Clause, but the Court need not address the proper remedy for that funding violation.” That’s because her ruling that Mr. Garland lacked statutory authority mooted the question of whether his operations unlawfully dipped into the public purse. 

Here too Mr. Smith, who is also trying to convict Trump for January 6, shies away from offering the 11th Circuit the opportunity to rule contrary to Judge Cannon. He devotes all of one paragraph, on his filing’s final page, to the issue. While the special counsel castigates what he calls Judge Cannon’s “erroneous determination” and asserts that his office “is properly funded,” he hardly heads off the possibility of a more fulsome challenge from Trump on these grounds. 

Mr. Blackman zeroes in on another possible vulnerability for Mr. Smith. The special counsel argues that “for more than 150 years, Attorneys General have appointed special counsels to investigate and prosecute some of the nation’s most consequential cases” and that “Attorneys General appointed special counsels even before the creation of the Department of Justice.” He cites the prosecution of the president of the Confederacy, Jefferson Davis, as well as of one of the accomplices in President Lincoln’s assassination.

Analogy, Mr. Blackman argues, only goes so far. Trump argues, and Judge Cannon agreed, that the elevation of  Mr. Smith exceeded Mr. Garland’s reach. Mr. Blackman notes that the former prosecutor of war crimes at The Hague was promoted from “outside of government” and granted  “huge authority and autonomy.” The scholar likens it to the question chanted at the Passover Seder — “What makes this special counsel different than all other special counsels?”  

At least one legal liberal lion, the former acting solicitor general Neal Katyal, is bullish on Mr. Smith’s chances. He took to MSNBC to venture that the special counsel “could go into court, the 11th Circuit, blindfolded with his hands tied behind his back, and he would still win this, every day of the week.”