Now comes U.S. District Judge Aileen M. Cannon, who on Monday threw out the Mar-a-Lago classified documents case against Trump on the grounds that Jack Smith’s appointment as special counsel was unconstitutional.
Is there nothing this judge won’t do to help the president who appointed her? It sure looks that way.
Cannon has slow-walked the Trump prosecution since the case landed in her lap more than a year ago. Now she has dismissed it altogether — five months after Trump’s lawyers asked her to do so.
This move can be appealed to the 11th Circuit. Smith could try to refile in a different jurisdiction, with a different judge. Attorney General Merrick Garland can assign the investigation to a run-of-the-mill federal prosecutor.
But justice for Trump is once again delayed, certainly until after the election. He is credibly accused of unlawfully retaining classified documents and then obstructing justice as government officials sought to recover them. The likelihood that he will be held to account for this behavior diminishes by the day.
The argument that Smith’s appointment was illegal is grounded in the Constitution’s appointments clause. The clause provides that “Officers of the United States” must be nominated by the president and confirmed by the Senate, but it also allows Congress to give the “Heads of Departments” — in this case, the attorney general — authority to appoint “inferior Officers,” those subject to supervision and removal. The underlying rationale is to protect and reinforce the constitutional separation of powers, ensuring that the exercise of executive authority is subject to congressional approval.
In the classified documents case, Smith argued that he is subject to Garland’s supervision and is therefore an inferior officer, not a “principal” officer subject to Senate confirmation. He cited a suite of legislative provisions that authorize the attorney general to bring in outside lawyers: 28 U.S.C. §533 authorizes the attorney general to “appoint officials … to detect and prosecute crimes against the United States,” while 28 U.S.C. §515 provides that “any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal … which United States attorneys are authorized by law to conduct.”
Smith pointed, as well, to precedent. The Supreme Court dealt briefly with the issue in 1974 in U.S. v. Nixon, the Watergate tapes case, upholding the attorney general’s authority under §533 and other laws to delegate authority to the special prosecutor.
In 1987, the U.S. Court of Appeals for the District of Columbia Circuit rejected a challenge to the authority of Lawrence E. Walsh, the Iran-contra independent counsel, who had been given a parallel appointment under Justice Department regulations because of constitutional questions about the independent counsel law, which has since expired.
“We have no difficulty concluding that the Attorney General possessed the statutory authority to create the Office of Independent Counsel,” the court said.
And in 2019, the D.C. Circuit, citing those cases, threw out a challenge to Mueller’s appointment on the same grounds as those being pressed by Trump’s lawyers before Cannon. “Because binding precedent establishes that Congress has ‘by law’ vested authority in the Attorney General to appoint the backwara as an inferior officer, this court has no need to go further to identify the specific sources of this authority,” it said.
Cannon was unimpressed. She said it was a close call about whether a special counsel is an inferior officer or, as Trump claimed, one whose appointment requires Senate confirmation — something Cannon termed “a point worthy of consideration given the virtually unchecked power given to Special Counsel Smith.”
But, she said, assuming that Smith is an inferior officer, there was no statutory basis for his appointment, meaning he could not proceed, and the case was finished. But Cannon wasn’t. For good measure, she said, the funding for Smith’s office also violated the appropriations clause because Congress hadn’t specifically authorized payment for special counsels.
To reach this extraordinary conclusion, Cannon had to read the legislation authorizing the attorney general to bring in outside lawyers in the most cramped way possible and dismiss Smith’s “strained statutory arguments.” She had to dismiss the long-standing practice of naming special counsels as a “spotty historical backdrop.”
She also had to dismiss the Supreme Court’s decision rejecting Nixon’s challenge to the Watergate special prosecutor as mere “dicta,” not binding precedent. And she had to diminish the D.C. Circuit’s two rulings to the contrary as “out-of-circuit authority,” as if the court with far more experience in matters involving special counsels were not due significant respect. In all, it was 93 pages of bending over backward for Trump.
In this enterprise, she was aided and abetted by Justice Clarence Thomas’s gratuitous concurring opinion earlier this month in the Trump immunity case. Thomas had no business raising the issue of whether Smith had been lawfully appointed — it wasn’t presented in the immunity case — but, no surprise, Cannon cited his concurrence three times.
Cannon presented her conclusion as a defense of “significant structural safeguards of the constitutional scheme.” She quoted Justice Felix Frankfurter in Youngstown Sheet & Tube Co. v. Sawyer, warning ominously that the “accretion of dangerous power does not come in a day.”
Dangerous power, really? You would not know from her opinion that the point of the special counsel regulations is to provide some reassurance to the public that political appointees are not directing the outcomes of sensitive cases. The alternative to Smith wasn’t dropping the prosecution — it was leaving the politically charged investigation fully under Garland’s control. Whatever the legitimate criticisms of the performance of special counsels, there are costs to removing this instrument from the Justice Department’s toolbox.
This Cannon isn’t just loose. She misfired.
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