District judge Aileen Cannon has issued ruling after ruling that seems to favor Donald Trump, but an analyst warned she's now got a chance to truly outrage skeptics.
The former president's attorneys filed a motion in February to disqualify special counsel Jack Smith, and Cannon not only agreed to hear oral arguments on the matter but waited nearly four months to hold that hearing in her Florida courtroom, wrote Washington Post columnist Ruth Marcus.
"Now, Cannon might be poised to issue her most audacious ruling yet, on Trump’s far-fetched bid to have the indictment dismissed on the grounds that special counsel Jack Smith’s appointment is constitutionally invalid, Marcus wrote.
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"This is the kind of Hail Mary motion that should have been dispatched quickly after Trump’s lawyers filed it in February. But that’s not the Cannon way."
The federal judge appointed by Trump also agreed to hear arguments from outside parties on the ex-president's argument that "officers of the United States" must be nominated under the Constitution's appointments clause by the president and confirmed by the Senate, although it allows Congress to give the "heads of departments" the authority to appoint "inferior officers."
"It’s true that the Supreme Court has bolstered the reach of the appointments clause in recent years," Marcus wrote. "Still, the problem with the anti-Smith argument is threefold: text, history and precedent."
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The law does authorize the attorney general to make such appointments and they have for decades, including Archibald Cox in Watergate through Robert Mueller in the Trump-Russia investigation, and the courts have already considered and tossed out constitutional challenges to special counsel appointments, including the Nixon tapes case.
"But here we go," Marcus wrote. "Cannon will hear arguments on the appointments clause issue on Friday and, on Monday, the even more tendentious question of the funding for his office, which in any event wouldn’t jeopardize his ability to prosecute the case."
"This is all of a piece with Cannon, Marcus added. "Even before the Trump indictment landed in her court, she seemed to plant her flag with Team Trump ... She has dawdled in making key decisions, expressed annoyance with the prosecutors and tended to rule in Trump’s favor. The case was once set to go to trial in May — it’s since been postponed indefinitely."
"This judge is, sorry to say, one loose Cannon," she concluded.