Quotes
Even though Cannon says it's limited to this case, her ruling casts doubt upon the appointment of special counsels in other cases, most notably Hunter Biden,
The burden to disqualify Judge Cannon is higher, and Smith may not want to fight that fight right now,
Rahmani told Newsweek over email Winning the appeal and having a case at all to litigate is the special counsel's primary goal,
McAuliffe wrote in an email to Newsweek on Monday In this case, the decisions were so profoundly outside of the norms, that I think Smith had to at least consider making this request,
Asking to remove a judge on the basis of bias is a very significant accusation,
McQuade, a former U.S. attorney for the Eastern District of Michigan, told Newsweek over email Monday The substance of Judge Cannon's order is the subject of the appeal and the legal briefs,
At some point, the Eleventh Circuit may have to step in and remove her. But Smith wants to pick his battles right now, so that's an argument for another day,
Under the appointments clause, ... Congress may vest a head of department with the power to appoint an inferior officer. Here, Congress has authorized the attorney general, by law, to appoint as an inferior officer the special counsel.
Because special counsel Smith’s exercise of prosecutorial power has not been authorized by law, the court sees no way forward aside from dismissal of the superseding indictment,
Cannon wrote in her ruling The Court should reverse the dismissal order and remand for further proceedings,
The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,
Cannon wrote in her decision, which cited a portion of Thomas's concurring opinion, which is nonbinding and was not joined by any of the eight other justices on the high court Many other officials in the Department, outside of Main Justice, are likewise identified by statute as subject to presidential appointment with Senate advice and consent, including the U.S. Attorneys, U.S. Marshals, and the Directors of the DOJ law enforcement agencies,
according to a footnote on page 38 of Smith's brief From before the creation of the Department of Justice until the modern day, Attorneys General have repeatedly appointed special and independent counsels to handle federal investigations, including the prosecution of Jefferson Davis, alleged corruption in federal agencies (including the Department of Justice itself), Watergate, and beyond,
The district court’s rationale would likewise raise questions about hundreds of appointments throughout the Executive Branch, including in the Departments of Defense, State, Treasury, and Labor,
Apart from the district court below, every court to consider the question has concluded that the Supreme Court’s determination that those statutes authorized the Attorney General to appoint the Watergate Special Prosecutor was necessary to the decision that a justiciable controversy existed and therefore constitutes a holding that binds lower courts,
Upon careful study of the foundational challenges raised in the Motion, the Court is convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme – the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law,
Cannon wrote in her decision last month Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States be appointed by the President subject to the advice and consent of the Senate, although Congress may vest the appointment of inferior officers in the President alone, in the Courts of Law, or in the Heads of Departments."
The Appointments Clause says In the case of inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel’s strained statutory readings,
The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere – whether in this case or in another case, whether in times of heightened national need or not,
In the end, it seems the Executive’s growing comfort in appointing ‘regulatory’ special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny,