In recent developments pertaining to the Trump immunity cases, U.S. District Judge Aileen M. Cannon has signaled her intention to hold a substantial hearing on the matter of special counsel Jack Smith’s appointment. This marks yet another successful delay tactic employed by former President Donald Trump and his legal team. While Cannon’s apparent interest in the subject is noteworthy, it also feeds into the two chief criticisms of her handling of the case: that she’s slow-walking it and treating Trump’s delay tactics more seriously than they deserve.
This effort to question the legality of special counsels has been spearheaded by prominent conservative lawyers, including former Reagan administration attorney general Edwin Meese III. These legal experts have argued for years that special counsels like Mueller and Smith aren’t authorized under the law because they are not confirmed by the Senate. Critics maintain that special counsels should be considered “principal” rather than “inferior” officers, thus requiring Senate confirmation.
Despite Cannon’s apparent interest in this line of argument, it has fared poorly with regard to Robert S. Mueller III. Two U.S. district judges, including a Trump nominee, rejected a similar claim about Mueller’s appointment. Later, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld the decision.
However, in our current political and legal climate, nothing can be ruled out. As Katy Harriger, an expert on special counsels at Wake Forest University, points out, “As has been made clear in other areas, commitment to earlier precedent for precedent’s sake is not an animating value of this Court.” With the current majority on the Roberts Court generally hostile to appointment arrangements that limit presidential control over executive actors, there is uncertainty as to whether a special counsel like Smith meets the requirements for an “inferior officer.”
Critics of Trump’s continued immunity claims may deride the Supreme Court for taking up these issues after they were roundly rejected by a unanimous appeals court panel. However, in this instance, the court seems more inclined to decide on guardrails rather than actually sparing Trump from prosecution.
As we move closer to a potential second Trump term in which he’s poised to further test the limits of the chief executive, it would seem less drastic for courts to sign off on the idea that Smith’s particular appointment was unlawful. And if Cannon’s latest controversial decision is any indication, this outcome may be in play. The question now is whether the historically conservative Supreme Court might ultimately take a similar stance. Only time will tell how this saga unfolds and what impact it may have on the future of special counsels in America.
