Jack Smith Appears Close to Giving Up Mar-a-Lago Case Against Trump in What Could Be a Missed Opportunity for the Supreme Court

Special Counsel Jack Smith’s request for the United States Circuit Court of Appeals to delay the Mar-a-Lago case against President Trump is another signal that federal cases against the 45th president are running on borrowed time. It could also block the path to a Supreme Court ruling on the constitutionality of special counsels.

Mr. Smith asked the circuit for an adjournment until December 2 “to allow the Government time to assess this unprecedented situation and determine the appropriate path forward consistent with Department of Justice policy.” He made the same request to Judge Tanya Chutkan in the election interference case.

The withdrawal marks a retreat for the special prosecutor, who has been pressuring the touring racers to overturn Judge Aileen Cannon’s ruling that Attorney General Garland’s appointment was unlawful because it lacked legal basis. It also rejected all accusations against Trump and ruled that Mr. Smith’s financing was illegal. It was a stunning victory for the 45th president.

Mr. Smith is petitioning to stay this appeal, which previously found a favorable audience before the court when Judge Cannon appointed a special government official to oversee the collection of evidence. Mr. Smith now acknowledges that reality has changed because “one of the defendants in this case, Donald J. Trump, is expected to be confirmed as president-elect on January 6, 2025, and to be inaugurated on January 20, 2025.”

After Trump took the oath of office, Justice Department policy mandates that “impeaching or criminally prosecuting a sitting President would unconstitutionally impair the capacity of the executive branch to discharge its constitutionally appointed functions.” Trump will also have the power to hire an attorney general (he has nominated Congressman Matt Gaetz) to remove Mr. Smith from office and dismiss the charges.

Mr. Garland appears to have preferred to settle Mr. Smith’s cases himself (the special counsel could resign and the charges could be dismissed) rather than leave them to the mercy of Trump’s second term. The request for a delay in this case and election interference may be setting the stage for how such a withdrawal would be accomplished.

If Mr. Smith abandons his appeal of Judge Cannon’s decision, the consequences could extend beyond Trump. The Florida jurist’s ruling that Mr. Garland could not appoint Mr. Smith without Senate confirmation touched on the Constitution’s Appointments Clause and Supreme Court precedent. United States / NixonThis seems to suggest that attorneys general can appoint junior prosecutors.

Judge Cannon considered this decision to be a judgment or a non-binding decision. The District Judges of the United States Court of Appeals for the District of Columbia Circuit have reached the opposite conclusion, with precedents holding that the attorney general has the authority to appoint special prosecutors and the like. This position binds trial judges in the District of Columbia, such as Judge Chutkan in the Jan. 6 case.

If the 11th Circuit had agreed with its sister circuit rather than Judge Cannon, the circumstances would have been ripe for the Supreme Court to consider. The Nine, whose review power is discretionary, tend to hear cases where there is a difference of opinion between the two circuits. Mr. Smith’s withdrawal means the 11th Circuit will no longer have the opportunity to rule. Judge Cannon’s decision stands for now.

There appear to be at least two justices who might be upset that the opportunity to review was missed. Judge Brett Kavanaugh called the precedent: Morrison/Olsondeliverer of the constitution permit According to independent lawyers, this is “a terrible decision” and “one of the Court’s biggest mistakes.” Judge Clarence Thomas appears to share Judge Cannon’s view. He wrote that Mr. Smith’s “prosecution may violate our constitutional structure.”