Cannon's cunning argument on Appropriations Clause
One of the more interesting - and disturbing - arguments Cannon makes in her decision involves the Appropriations Clause, and what she sees (agreeing with Trump's attorneys) as a violation of the Appropriations Clause. Put simply, the argument is that Smith spent money that he was not authorized to spend for his entire investigation, what she calls "substantial funds drawn from the Treasury without statuatory authorization" (p. 91). Her finding is that "...Special Counsel Smith's investigation has unlawfully drawn funds from the Indefinite Appropriation" (p. 87).
It's not the main argument of the ruling, but it's interesting in its own right. By making a partial ruling on the Appropriations issue, she effectively aims at two things, in my view:
1) She provides an avenue for contesting any refiling outside the Special Counsel structure. Some have suggested here that the DOJ could simply refile through the ordinary US Attorney's office for the Southern District, using Smith's evidence. But if all that evidence was acquired through an illegal funding mechanism, the remedy (which she pulls from a conservative challenge to the CFPB!) is dismissal anyway. Cannon explicitly brings this up to address the possibility of Smith being reappointed in another way, but the same reasoning would apply to a non-special counsel prosecution: "what to make of the prior action?," she asks. She then notes that the Special Counsel investigation has been funded illegally, and that to "rewrite history at this point seems near impossible" (p. 91).
2) The Appropriations ruling is an indirect but plausible threat of prosecution for both Smith and Garland. A Trump DOJ could very well turn around and charge them both with use of and/or conspiracy to use, as Cannon calls them, "unlawfully drawn funds." Niceties about official duties and qualified immunity, of course, will mean nothing. The whole Appropriations piece is ominous in this way. It provides the roadmap for prosecuting Jack Smith and his team themselves.
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Where the charges of "lawfare" are tinged with an undercurrent of "Wait until we get in."
Republicans are incredibly eager to control an executive branch with a Republican DOJ.
Hope Garland's paying attention to your second point.
We'd then seem to be at a sorting process of Smith and pre-Smith evidence and work product, if Cannon's argument were to hold any weight or have any effect for future decisions. It does seem like her whole "what of the prior acts?" business was aimed at disqualifying evidence, though, don't you think?
