I recently discussed the decision of Judge Aileen Cannon to strike down the Florida case against former President Donald Trump. Law professors ridiculed the concurrence of Justice Thomas in arguing that special counsels lack a constitutional foundation.
Biden is now asking the federal courts to adopt the Thomas position. On Thursday, courts in California and Delaware were asked to dismiss the criminal tax and gun cases against Biden.
The motions track the analysis of Judge Cannon and argue that “the Attorney General relied upon the exact same authority to appoint the Special Counsel in both the Trump and Biden matters, and both appointments are invalid for the same reason.”
I wrote in my column that the challenges seem to draw courts into the Wonderland of Special Counsels.
In “Alice’s Adventures in Wonderland,” the Mad Hatter asks Alice, “Why is a raven like a writing desk?” It turned out that the Mad Hatter had no better idea than Alice.
In her 93-page order, U.S. District Judge Aileen Cannon seemed to face the same dilemma when she asked Special Counsel Jack Smith why a private citizen is like a confirmed U.S. Attorney.
However, a key difference between Smith and Weiss is that it could lead these courts to asking “why is a Weiss like a Smith?” The extent that he is not could prove a critical distinction. Weiss is a Senate confirmed U.S. Attorney where Smith was a private citizen plucked by Merrick Garland from the general population for the position.
Biden is seeking to brush over that Mad Hatter anomaly:
“The constitutional flaw at the center of the Special Counsel’s appointment is that Congress has not established the office of a Special Counsel. Given that Congress requires a U.S. Attorney to be nominated by the President and confirmed by the Senate, it makes no sense to assume that Congress would allow the Attorney General to unilaterally appoint someone as Special Counsel with equal or greater power than a U.S. Attorney. That is what has been attempted here.”
Clarence Thomas is beaming.