'Saturday Night Massacre': The new Cannon ruling has familiar ring to this ex-prosecutor

The number of criminal indictments against former President Donald Trump went from four to three when, on Monday, July 15 — the opening day of the 2024 Republican National Convention in Milwaukee — Judge Aileen Cannon dismissed special counsel Jack Smith's Mar-a-Lago documents case.

Legal experts on MSNBC predicted that Smith will appeal the Trump appointee's ruling, noting that an appeal could take months — or perhaps even years. And at least for now, the case is dead.

In a scathing article for the conservative website The Bulwark, law professor and former federal prosecutor Kimberly Wehle is vehemently critical of Cannon. And she points out a parallel between the fate of this case and President Richard Nixon's infamous "Saturday Night Massacre" of the Watergate era.

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On Saturday, October 20, 1973, Nixon ordered U.S. Attorney General Elliot Richardson to fire Watergate special prosecutor Archibald Cox. When Richardson refused and resigned immediately, he ordered Deputy U.S. Attorney General William Ruckelshaus to fire Cox; Ruckelshaus also refused and resigned, effectively immediately.

"Now for a bit of history," Wehle explains. "Like Jack Smith's investigations of Trump, the Department of Justice's 1973 investigation of President Richard Nixon and the Watergate scandal was led by a special counsel, or special prosecutor, as the position was then called. Nixon ordered that he be fired, resulting in the 'Saturday Night Massacre.' To prevent such a crisis from recurring, Congress in 1978 passed the Ethics in Government Act, which created the 'independent counsel' — a similar sort of prosecutorial office, but appointed by a three-judge panel and not fireable."

In the Mar-a-Lago documents case, Trump's legal team argued that U.S. Attorney General Merrick Garland had no business appointing Smith as special counsel without him being confirmed by the U.S. Senate. Cannon agreed with that argument, throwing out the case on July 15.

But Wehle emphasizes that Cannon's decision is badly at odds with legal precedent, including the U.S. Supreme Court's 1988 ruling in Morrison v. Olsen.

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"The independent counsel statute lapsed in 1999, and in its place, DOJ promulgated regulations establishing a mechanism for appointment of a special counsel," Wehle notes. "Under those regulations, Smith can only be fired for 'good cause.' It is under those regulations that Robert Mueller investigated Donald Trump and Russia's interference in the 2016 election, that John Durham then investigated the Mueller investigation, that Robert Hur investigated Joe Biden's mishandling of classified documents, that David Weiss obtained Hunter Biden's recent conviction, and that Jack Smith has run his two investigations of Trump."

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Kimberly Wehle's full article for The Bulwark is available at this link.