Are all past and present “special counsel” prosecutions now subject to new scrutiny?

I am not an expert or even knowledgeable concerning all the legal arguments that surround the appointment of special federal counsel to prosecute various notable persons under not-so-special federal criminal law.  But I do know that former President Donald Trump is not the only person currently being prosecuted by a “special counsel,” and so his lawyers are not the only one sure to be reading closely this new 93-page opinion by US District Judge Cannon.  Here is the start and a portion of the introduction from her opinion:

Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order.  The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution. U.S. Const., Art. II, § 2, cl. 2. Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding….

Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution?  After careful study of this seminal issue, the answer is no.  None of the statutes cited as legal authority for the appointment — 28 U.S.C. §§ 509, 510, 515, 533 — gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise. 

The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers.  The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers.  If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so.  He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.

My assumption is that the US Justice Department will appeal this ruling to the Eleventh Circuit, and that this case could (soon?) get to the Supreme Court.  But this Wikipedia entry reminds me that at least a half-dozen special counsel have been appointed over the last quarter century and have secured some (now-suspect?) convictions and sentences.   Most notably and most recently, I believe Hunter Biden’s recent convictions on three counts following a jury trial were secured by special counsel David Weiss.  Hunter Biden’s lawyers likely will need to consider raising Judge Cannon’s opinon in some way in their work (perhaps even before the upcoming sentencing).  Moreover, if a past special counsel prosecution is now deemed unconstitutional, I would if there could be a basis for seeking to vacate past conviction in order to avoid legal collateral consequences and maybe even a basis for constitutional tort litigation. 

Of course, there are all sorts of barriers for anyone previously convicted to get the benefit of any new constitutional rulings, especially rules of procedure (which this seems to be).  Still, because every special counsel situation involves a high-profile matters, perhaps we should expect at least some high-profile echoes from this ruling even if it is swiftly appealed.