 They've done it before, and so there's a very good chance they'll do it again. The judge dismissed this case on the ground the appointment of special counsel Jack Smith was illegal for a couple of reasons. First, she ruled that a special counsel may only be appointed by the president and must be confirmed by the Senate. But here, AG Merrick Garland appointed Smith, not the president, and there was no Senate confirmation. She also said, gee, a special counsel doesn't have a blank check. His budget has to be approved by Congress.