President Trump’s success  in disqualifying Special Counsel Jack Smith from his Mar-a-Lago case in South Florida — a disaster for the government — has the prosecutor anxious to avoid the same fate at the District of Columbia.

Mr. Smith on Thursday filed to Judge Tanya Chutkan his argument for why Judge Aileen Cannon’s disqualification ruling ought not to be transposed to the January 6 prosecution. Trump wants Judge Chutkan to follow Judge Cannon’s lead in ruling that Mr. Smith was unlawfully appointed. To boot, she dismissed the charges. 

The special counsel asks Judge Chutkan, who has often been sympathetic to the government’s position, to “reject the defendant’s argument that the Special Counsel is not lawfully appointed or funded.” She has indicated that the precedent that binds her  — set down by the District of Columbia Circuit of the United States Court of Appeals — permits attorneys general to appoint subordinate prosecutors like Mr. Smith.

Mr. Smith argues that this precedent “squarely forecloses” the 45th president’s argument that Attorney General Garland lacked the statutory and constitutional authority to appoint him without the confirmation of the Senate. The prosecutor also warns Judge Chutkan against endorsing Judge Cannon’s determination that Mr. Smith’s funding through the public fisc violates the Constiution’s Appropriations Clause. He calls that ruling “meritless.”

The government argues that Judge Chutkan ought to turn away Trump’s motion to dismiss the case because his lawyers waited too long to make it. The special counsel contends that Trump  “affirmatively stated that he was not pressing the Appointments Clause claim when asked during oral argument in both the D.C. Circuit and the Supreme Court.” This stands in contrast to his alacrity in pressing the issue before Judge Cannon.

Trump recently called Judge Chutkan “the most evil person” in a conversation with the podcaster Dan Bongino. She has consistently ruled against him, including ruling that he did not enjoy immunity for official acts, a determination that was overruled by the Supreme Court. Judge Chutkan has declared from the bench that “presidents are not kings” and has meted out harsh sentences to the January 6 protesters whose cases she stewarded.

For Mr. Smith to keep his job, he has to defend how Mr. Garland performed his duty in selecting him to prosecute Trump. The attorney general has accused Judge Cannon of making a “basic mistake about the law.” The special counsel, though, contends that  the Mr. Garland “is the head of the Department of Justice and has exclusive authority … to direct ‘the conduct of litigation’ on behalf of the United States.”

The Constitution allows “heads of departments” to transact the “Appointment of such inferior Officers,” but only if Congress provides for those appointments “by law.” Judge Cannon found that Mr. Garland blundered in not relying on a sturdy enough statute. Mr. Smith now argues that there are more than enough laws on the books for attorneys general “to appoint special counsels and define their duties” — like Mr. Garland did here. 

Mr. Smith notes that the current special counsel regulations — implemented by Attorney General Reno at the turn of this millenium — are less intrusive to the separation of powers than the previous regime, which gave courts a role in appointing what were known as independent counsels. The government notes that the current arrangement “provides for a wholly Executive Branch procedure for appointing a special counsel.”

The special counsel explains to Judge Chutkan that Mr. Garland appointed him two days after Trump declared his intention to regain the White House. Mr. Smith writes that “faced with this sensitive situation, the Attorney General followed the well-established Department practice of appointing a special counsel to dispel any notion that political motives played a role in the investigations.”

Trump disputes that account. He called Mr. Smith’s latest brief on immunity a “monstrosity,” a “false hit job,” and “politically motivated.” His contention, shared by millions, that the cases against him amount to “election interference” suggests that the appointment has not been entirely successful at dispeling suspicion regarding the presence of political motives in the criminal prosecutions of the 45th president.

Mr. Smith describes Mr. Garland as treading a “well-worn path established by his predecessors of employing special counsels in similarly sensitive cases,” but Judge Cannon was unimpressed with that precedent, even when it was crafted by the Supreme Court. She ruled that the Nine’s apparent endorsement, in United States v. Nixon, of the attorney general’s prerogative to appoint subordinate attorneys was not binding dictum.

The special counsel would appear to have the advantage as long as Judge Chutkan is the one handing down the ruling. At an earlier hearing on the issue she called Judge Cannon’s ruling “an opinion filed by another district judge in another circuit which frankly this Court doesn’t find particularly persuasive.” She noted that Trump is reliant on “dicta in a concurrence written by Justice Thomas.” The court’s senior justice appeared to endorse Trump’s position just weeks before Judge Cannon decided in his favor.

If Judge Chutkan denies Trump’s motion to dismiss, the 45th president could appeal that decision to the District of Columbia appellate riders. If they side with Mr. Smith, the Supreme Court would be the next appellate address. Meanwhile, Judge Cannon’s ruling will be reviewed by the 11th Appeals Circuit. If that tribunal and the District of Columbia Circuit are at loggerheads, the Nine could take the case and settle the issue.