The judge overseeing Donald Trump‘s federal election obstruction case indicated she would not dismiss it over complaints about special counsel Jack Smith‘s appointment, a former judge has said.
On Thursday, during an appearance on CNN, John E. Jones, a former federal judge, said Judge Tanya Chutkan had “tipped her hand” and shown how she would respond to appeals from the former president’s lawyers if they argued that Attorney General Merrick Garland had unlawfully appointed Smith as special counsel because his appointment was not first approved by the Senate.
In July, Judge Aileen Cannon, who presided over Trump’s classified documents case in Florida, dismissed the 40 federal charges against the former president over his alleged mishandling of classified materials and attempts to obstruct the government from retrieving them from his Mar-a-Lago resort. In her ruling that the case should be thrown out, Cannon backed Trump’s claims about Smith’s appointment.
Jones said that during a hearing in the federal election obstruction case on Thursday, Chutkan dismissed Cannon’s ruling, meaning she is unlikely to follow suit. Chutkan said she did not find Cannon’s opinion in the classified documents case “particularly persuasive” but would let Trump’s lawyers file a similar argument in the Washington, D.C., courts.
“Judge Chutkan tipped her hand today,” Jones told CNN. “She said that she did not find Judge Cannon’s opinion ‘particularly persuasive.’ That means, in judge-speak, ‘I don’t think it holds water at all.’ I think that was a way to sort of candy-coat it.”
Former President Donald Trump in New York on September 5. Former federal Judge John E. Jones said Judge Tanya Chutkan, who is overseeing Trump’s federal election obstruction case, “tipped her hand” and indicated she would not dismiss the case over special counsel Jack Smith’s appointment.
Spencer Platt/Getty Images
Jones said Chutkan also mentioned a concurring opinion from Supreme Court Justice Clarence Thomas granting some presidential immunity for official acts performed while in office, which Cannon cited in her ruling, but that Chutkan “didn’t think much of that either.”
“So one thing we can say with assurance after the hearing today is, they can preserve that for appeal if they want to, but I don’t think Judge Chutkan is ever going to toss this thing based on the special counsel being unlawful,” Jones added. “That’s just not going to happen.”
Newsweek has contacted Trump’s legal team for comment via email.
After Cannon dismissed the classified documents case, Smith filed an appeal to the 11th Circuit, saying Cannon’s decision was “at odds with widespread and longstanding appointment practices” at the Department of Justice. Each side is likely to appeal any decision from the 11th Circuit, meaning the case could end up at the Supreme Court.
Greg Germain, a law professor at Syracuse University in New York, previously said that Cannon’s reasons for dismissing the classified documents case were “extremely weak,” but that the Supreme Court could eventually side with her.
“There is no way to know for sure what the Supreme Court will say, but given the Supreme Court’s extremely broad view of separation of powers in the Trump immunity case, there is a good chance that the Court will agree with Judge Cannon that the broad unsupervised powers given to Jack Smith are unlawful and that the special counsel regulation is overbroad,” Germain told Newsweek.
In its brief to the 11th Circuit on August 26, Smith’s office said the attorney general had the “necessary overarching authority” to direct the operations of the Justice Department, including appointing special counsels without approval.
It said, “Precedent and history confirm those authorities, as do the long tradition of special-counsel appointments by Attorneys General and Congress‘s endorsement of that practice through appropriations and other legislation.”
