Attorney General Garland’s combative defense, on national television, of his hiring of Special Counsel Jack Smith signals that the Department of Justice is set to go full tilt to convict President Trump for his alleged crimes at Mar-a-Lago. 

General Garland spoke to NBC News days after Mr. Smith filed notice that he intends to appeal Judge Aileen Cannon’s ruling that his appointment was unconstitutional. She also dismissed the 40 charges against Trump, for mishandling classified documents, along with the obstruction charges handed up against his two co-defendant in South Florida.

The attorney general told NBC that for “more than 20 years I was a federal judge. Do I look like somebody who would make that basic mistake about the law? I don’t think so.” He added: “Our position is that it’s constitutional and valid” and that  “every single court, including the Supreme Court, that has considered the legality of a special counsel appointment, has upheld it.”

That is, until Judge Cannon ruled that Mr. Smith’s accession — without nomination by the president or confirmation by the Senate — violated the Appointments Clause. She found that Mr. Garland’s decision lacked statutory authority and threatened the “structural liberty inherent in the separation of powers.” In doing so, she determined that high court language seemingly granting the attorney general such power is non-binding dictum.

In a remarkable moment, Mr. Garland gestured to the environs and declared that  “as you well know, I picked this room for this interview. This is my favorite room in the justice department. It’s a law library.” That suggests that the attorney general is signaling to Judge Cannon — and the riders of the United States Court of Appeals for the 11th Circuit, who will hear Mr. Smith’s appeal — that the legal texts are on his side.

Mr. Garland, though, has suffered stinging legal defeat before. Most recently, in Mr. Smith’s January 6 case, the Supreme Court ruled that Trump, and all presidents, are entitled to immunity for official acts undertaken while in office. The special counsel had persuaded Judge Tanya Chutkan and the D.C. Circuit that there was no such immunity. The high court cited the separation of powers and presidential prerogative in its decision.        

The Mar-a-Lago case was thought by some lawyers to be the strongest of the four against the 45th president, as it is not contested that reams of classified material — some of it top secret — made its way to the Palm Beach manse from the White House. Mr. Smith also benefited from access to the notes of one of Trump’s lawyers, Evan Corcoran, and other formidable evidence. The special counsel, though, may never make it to a jury. 

In ruling that Mr. Smith was acting ultra vires, or without lawful authority, Judge Cannon delivered a stinging rebuke to Mr. Garland, whose legal career has been gilded. He supervised the prosecution of the Oklahoma City bombings, and served as chief judge on the United States Court of Appeals for the District of Columbia Circuit. President Obama nominated him for the Supreme Court, an appointment foiled by Senator McConnell.

Judge Cannon, 28 years Mr. Garland’s junior, has a thinner legal resume. She was appointed to the bench by President Trump after relatively brief spells in private practice and as an assistant United States attorney in Florida. That, though, did not stop her from writing that the special counsel’s office “has spent tens of millions of dollars since November 2022, all drawn unconstitutionally from the Indefinite Appropriation,” and that she had “difficulty seeing how a remedy short of dismissal would cure this substantial separation-of-powers violation.”

Mr. Garland’s broadside against Judge Cannon — it appeared as if he was pulling rank, though he is now a member of the Executive, not the Judiciary — belies the longshot options available to the government. Even if the 11th Circuit agrees that Judge Cannon erred and that Mr. Smith can stay on, it would return the case right back to her courtroom. Mr. Garland’s comments are unlikely to make her look at Mr. Smith with greater favor. 

If the government loses, it could appeal to the Supreme Court, where Justice Clarence Thomas has already telegraphed that he is closer to Judge Cannon’s understanding of the law than Mr. Garland’s. Oral arguments could disclose other justices who could be amenable to challenging the special counsel’s appointment in light of the Appointments and Appropriations Clauses.

Mr. Garland could also take the case even further in-house, dispense or demote Mr. Smith, and have the charges refiled by a United States attorney in Florida. The case, though, would then no longer have the protection of a special counsel, who is by regulation afforded protection from  interference. Mr. Garland’s comments, though, suggest that he is doubling down on Mr. Smith — and his own decision to hire him.