The case for Special Counsel Jack Smith’s disqualification from President Trump’s Mar-a-Lago prosecution grows stronger with a new brief supporting Judge Aileen Cannon’s ruling that the prosecutor’s appointment was unlawful.

The amicus curiae, or friend of the court, brief aims to persuade the 11th Circuit to uphold Judge Cannon’s stunning removal of Mr. Smith. It’s written by the legal scholars Joshua Blackman and Robert Sasso on behalf of another sage, Seth Barrett Tillman, the one time Whitewater prosecutor Robert Ray, and the Landmark Legal Foundation.

The filing goes further to argue that the Supreme Court should overturn the case that approved the appointments of what were then-called independent counsels — Morrison v. Olson. The amici paint themselves as the heirs of Justice Antonin Scalia, who in that case was the sole dissenter. Echoing Scalia, they write that “the Special Counsel, like the Independent Counsel, still comes as a wolf.”       

Judge Cannon in July determined that Attorney General Garland blundered when he named Mr. Smith as special prosecutor without Senate confirmation or invocation of a pertinent statute. She discerned that the only way to remedy that unlawful step was to dismiss the 40 charges handed up against the 45th president for storing classified documents at his Palm Beach manse. 

Mr. Smith has appealed that ruling to the 11th United States Appeals Circuit, which has already reversed Judge Cannon twice before during the pendency of this litigation, one with respect to her naming of a special master to supervise the government’s collection of evidence at Mar-a-Lago. The circuit riders called that decision a “radical reordering of our case law” and reckoned that it “would violate bedrock separation-of-powers limitations.”

Judge Cannon’s most dramatic finding was that the Supreme Court’s ruling in United States v. Nixon — that the attorney general is empowered to appoint subordinate prosecutors — was not binding. This brief acknowledges that “from the 1850s through the 1950s, during six presidential administrations, Attorneys General retained outside lawyers as Special Counsels.” Mr. Barrett Tillman et al. argue that the Watergate Special Prosecutor at issue in Nixon was, as the justices put it, granted “unique authority and tenure.”

That would mean that Judge Cannon is correct that the holding of Nixon “is not controlling, and it should not be extended to today’s context.” The amici also revive their argument, first made before Judge Cannon, that Mr. Smith is not an “officer” in constitutional terms, but a mere “employee” because  “his position is not continuous, because his extant position would not continue to a successor.” As an employee, he “cannot exercise the sweeping powers of a Senate confirmed U.S. Attorney.”

The appeal over Mr. Smith’s appointment — General Garland took to television to assert that Judge Cannon made a “basic mistake about the law” — could preview a wider contest over the constitutionality of special counsels and the fate of Morrison. The independent counsel statute in that case expired in 1999. Today’s special counsel’s are governed by what are known as the Reno Regulations. 

Mr. Barrett Tillman and his amici note that if “Morrison were to be overruled, the constitutionality of the Reno regulations would be placed in serious jeopardy.” Mr. Blackman tells the Sun that of the high court decisions he views as mistaken, Morrison trails only Roe v. Wade and Chevron U.S.A., Inc. v. Natural Resources Defense Council. Both of those have fallen in recent years. 

Whether United States v. Trump provides grounds for reversing Morrison will depend on whether the question is preserved through the case’s journey up the appellate ladder. During oral arguments before Judge Cannon, those challenging Mr. Smith’s appointment  “asked to preserve the issue over whether” Morrison should be overruled. Mr. Smith’s office maintains that the issue was not “in any way presented,” and therefore is moot.

This brief posits that the “Supreme Court has resolved constitutional questions that were raised only by amici,” not by the parties themselves. If the Nine agree, the question of whether Justice Scalia was correct in discerning that the independent counsel is a constitutional affront could be revisited. “This wolf comes as a wolf” is how Scalia put the threat to the “boldness of the President.”

Mr. Blackman also shares that during oral arguments before Judge Cannon, he ventured that it is “least fair to acknowledge” that Morrison “stands on a shaky foundation” because it “has been chipped away by sealed law.” His purpose, the scholar discloses to the Sun, was to preserve the possibility of the Supreme Court revisiting the precedent down the road, even though Trump has not signaled he intends to pursue a challenge.  

There could be at least two justices inclined to entertain a challenge to Morrison. During oral arguments in Mr. Smith’s January 6 case, Justice Clarence Thomas ventured that he harbors his own doubts about the constitutionality of the special counsel’s appointment. Judge Cannon’s decision was handed down shortly after. Also during that colloquy Justice Brett Kavanaugh allowed that “one of the Court’s biggest mistakes” was Morrison and that it was a “terrible decision for the presidency and for the country.”

Even if the circuit riders uphold Judge Cannon’s disqualification of Mr. Smith in respect of the Mar-a-Lago case, the prosecutor’s January 6 case, being heard in the Columbia District, would  likely not be threatened. Judge Tanya Chutkan works under a longstanding precedent of the District of Columbia Circuit of the United States Court of Appeals that the attorney general is empowered to appoint prosecutors as he deems necessary. 

_______________

Correction: Judge Aileen Cannon ruled that Jack Smith’s appointment was unlawful. An earlier version misidentified the name of the judge.