The Round Up is a bit late today because of an early check out and drive back from Ocean City, NJ! I took a much-needed vacation during a perfect-weather week (and escaped with only a bit of a sunburn).
I thought I might be missing big Supreme Court news while on the beach, but another week has passed with no word on Trump’s immunity case, as well as a number of other, high-profile cases. With regard to immunity, at this point the Court’s reasoning one way or another is immaterial to the short term impact of the Court’s delay, which is that Trump now effectively has immunity from being prosecuted for his acts on January 6 at least until the election, and he wins that the issue will basically become moot anyway. Thanks for nothing, SCOTUS.
Meanwhile, down in Florida, the Loose Cannon has fired again, holding a hearing on whether the appointment of the Special Counsel is constitutional. In fact, a source who was in the courtroom for the hearing reported that Trump’s lawyers actually made a new, unbriefed argument that the Supreme Court’s decision in Morrison v. Olsen, which upheld the constitutionality of the Independent Counsel statute (the now-inoperative legislative framework that preceded the current Special Counsel regulations,), should be overruled. (I offered a brief history of the current regulations in this Substack video explainer.)
This argument seems to turn on a specific part of the Court’s reasoning in Morrison, which addressed separation of powers concerns raised by the role of Congress in the appointment process of the Independent Counsel. The current Special Counsel framework resolve the separation of powers issues by having the regulations promulgate from within the Executive Branch (DOJ). However, even under the current system, the Special Counsel is “appointed” by the Attorney General. Trump’s lawyers appear to be raising the question of whether the Special Counsel is an “inferior officer” as the Court held the Independent Counsel was in Morrison, or a “principal officer.” If it’s the latter, then allowing the Attorney General to appoint the Special Counsel — which creates the buffer between the Special Counsel and the President, and hence his independence — would violate the Appointments Clause, which requires principal officers to be appointed by the President and confirmed by the Senate.
The D.C. Circuit considered this question in a challenge to the appointment of Special Counsel Robert Mueller in 2019, which mirrored a similar challenge that Russian defendants charged with election interference made in court in 2018. (Both coincide with a constitutional argument against Mueller outlined in this law review article by conservative legal scholar Steven Calabresi.) In that case, the D.C. Circuit court ruled that the Special Counsel is an inferior officer, affirming the constitutionality of his role. However, we know that the law as interpreted by people far more experienced than her doesn’t tend to stop Judge Aileen Cannon. Just to put the possible parade of horribles out there: Cannon isn’t bound by the D.C. Circuit, and could theoretically rule the opposite way and declare Smith’s appointment unconstitutional, teeing it up for an appeal all the way up to the Supreme Court to reconsider the constitutionality of the current Special Counsel under its prior Appointments Clause reasoning in Morrison. In a lot of ways this seems unlikely, but honestly at this point I’ve learned to never say never with Trump’s prosecutions so I am just thinking out loud of the possibilities and explaining what could be his lawyers’ legal strategy, particularly with a sympathetic judge.
In any event, the one big decision the Court did hand down this week was United States v. Rahimi, which challenged the constitutionality of the federal restriction on individuals who are subject to domestic violence restraining orders from possessing firearms. The Court upheld the restriction, with Thomas as the lone dissenter (when you’ve lost Alito, you know you’ve hit rock bottom.) I’m still parsing the opinion and Renato and I will unpack the decision more in the podcast, but my personal reading of the Court’s reasoning suggests that there might be a potentially strong basis for Hunter Biden’s Second Amendment challenge to his conviction. To learn more about the background on that, check out our podcast for this week:
Articles worth reading:
I meant to share this Washington Post piece last week, which is relevant to the material we have covered in my Substack course and raises the issue of how to address foreign influence operations when they are enabled by domestic actors
My friend, colleague, and fellow Substacker, David Pepper (who was also a guest speaker for the Substack class on the vulnerability of state elections to foreign influence), is previewing his new book, 2025: A Novel, a dystopian (non?)fiction that tries to bring home what an America under the Trump/Heritage Foundation’s Project 2025 blueprint would look like
Upcoming events:
Freedom Academy Book Club, Wednesday, July 10, 10-11 a.m.. I’m very excited that my former CNN colleague, Jim Sciutto, will be joining us to discuss The Return of Great Powers: Russia, China, and the Next World War. I love Jim’s work and insights into national security issues and this is a discussion you won’t want to miss! Paid subscribers will receive a Zoom link three hours before.
I’m working on lining up more speakers for the summer, so stay tuned!
I’m looking forward to when pre-orders open for David Pepper’s new book. He’s a fellow Ohioan and a fabulous writer. His novels are the sorts you don’t want to put down until you finish them.
As to the week ahead, I have a feeling the immunities opinion will be held until Friday. Why? The first presidential debate is Thursday night. It would be too juicy of a point to beat each other over the head with if it were out there before the debate. Regardless of the opinion’s holding there would be plenty for Biden to beat on Trump with. Taunting Trump over not being the guilt-free potentate he thought was is one line of attack if the Supreme Court agrees with the DC Circuit. If the Supreme Court says that there is immunity Biden could keep taunting Trump over what Trump would like drawn on the Hellfire missiles for when Biden is supposedly supposed to drone-strike Trump.
Thanks for the Ocean City picture, Asha. Many fond memories of the Jersey Shore. And I watched you and Renato yesterday for your always insightful discussion. I do hope Jack Smith is not ousted by the very loose Cannon.