Supreme Court chief justice John Roberts was instrumental in creating special counsel regulations that were struck down by Judge Aileen Cannon in the classified documents case, a legal scholar has said.
Cannon, a Trump appointee, found the appointment of Jack Smith as special counsel to oversee Trump’s federal trials unconstitutional.
Department of Justice regulations allow for the appointment of special counsels in cases where the U.S Attorney General believes that they themselves may have a conflict of interest and need an independent attorney to lead a prosecution.
Norm Ornstein, emeritus scholar at the American Enterprise Institute and a contributing editor for The Atlantic magazine, recalled that Roberts was among those who drafted the rules. And Ornstein wrote that Cannon’s ruling is unlikely to find favor in the U.S Supreme Court.
Ornstein recalled that in 1999, Republican senators, George Mitchell and Bob Dole, asked him to co chair a project on alternatives to the Independent Counsel statute that was expiring.
He said they and their staff spent a year “researching what states and other countries had done.”
“Then we assembled an all-star team to sit for three intensive days to draft an alternative.”
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He recalled that one of the lawyers they brought in to draft the new regulation was John Roberts, who was then in private legal practice.
“We decided that the best alternative was not a new law but a set of Justice Dept regulations” and this was “substantially” what the Department of Justice did, Ornstein wrote.
“Our recommendation was unanimous in our group. Including the now-Chief Justice. The regulations have been affirmed over and over by multiple courts. Except the renegade Judge Cannon. Will be fascinating to see what [Roberts] says, and how he votes, if and when this issue gets to the Supreme Court,” Ornestein added.
Trump was facing 40 federal charges in Cannon’s court over his alleged handling of sensitive materials seized from his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House in January 2021. He was also accused of obstructing efforts by federal authorities to retrieve them.
The Republican presidential nominee had pleaded not guilty and has said the case is part of a political witch hunt.
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Newsweek sought email comment from Trump’s attorney and from Cannon’s office on Tuesday.
On Monday, July 15, Cannon dismissed the classified documents case against Donald Trump, ruling that both Smith’s appointment as special counsel and the funding of his office were both unlawful.
Smith may be able to reverse Cannon‘s dismissal of Donald Trump’s classified documents case, legal experts have said.
On Monday night, the Department of Justice rapidly authorized Smith to appeal the decision to the 11th Circuit U.S. Court of Appeals.
Carl Tobias, a law professor at the University of Richmond in Virginia, told Newsweek that Smith can either file his 11th circuit appeal or he may appeal directly to the Supreme Court.
“Smith will probably rapidly appeal to the 11th Circuit and may attempt a direct appeal to the Supreme Court.”
“The appeal will take a few months to have briefs and arguments in the 11th Circuit and then the loser will appeal to the Supreme Court,” Tobias said.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.