Dem
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GOP
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Maybe it was just a coincidence, but Judge Aileen Cannon chose the day that featured the VP announcement AND the first day of the GOP Convention AND Donald Trump's first public appearance after his assassination attempt to rule that she was dismissing the classified documents case against Trump, on the basis that the appointment of Special Counsel Jack Smith was unconstitutional.
We do not have the expertise to properly read and understand Cannon's ruling, which is 90+ pages long and quite abstruse. And even if we had the expertise, we don't have it within us to read that AND watch 4-5 hours of political conventioneering in the same day. Luckily, lawyer reader A.R. in Los Angeles does have the expertise, and was willing to take on the daunting task of reading and commenting on Cannon's ruling:
Judge Aileen Cannon granted Donald Trump's motion to dismiss Special Counsel Jack Smith's superseding indictment against Trump, Walt Nauta and Carlos De Oliveira on the grounds that Smith's appointment violated the appointments clause of the U.S. Constitution.
Over 93 exhaustive (and exhausting) pages, Cannon adopts wholesale the arguments of Steven Calabresi of the Federalist Society, who submitted an amicus brief at Cannon's invitation; it essentially repeats the failed arguments he made to the D.C. Circuit Court of Appeals in a challenge to Robert Mueller's appointment in 2019.
The appointments clause requires the President to appoint, and the Senate to confirm, certain offices, but Congress can vest that authority in "heads of departments" for the appointment of "inferior officers." In the Mueller challenge, the D.C. Circuit examined the statutes governing the Attorney General and the DOJ and concluded that, because the AG is appointed by the president and confirmed by Congress, and the statutes authorize the AG to delegate authority to various officials, a special counsel appointed by the AG is an inferior officer to whom he can assign certain DOJ matters. An inferior officer is "one whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate. "In reaching its holding, the Court also relied on U.S v. Nixon, the Supreme Court's unanimous decision that upheld the appointment of Special Prosecutor Leon Jaworski as part of its decision ordering Nixon to comply with Jaworski's subpoena for the Oval Office tapes.
Cannon, by contrast, did not consider the federal statutes governing DOJ as a whole; instead, she examined each statute separately, looking for specific congressional authorization for a special counsel. She found the statutes cited by Smith, and that were relied on by the D.C. Circuit, among others, to be wanting. For example, 28 USC section 533 authorizes the Attorney General to "appoint officials to detect and prosecute crimes against the U.S... and to conduct investigations regarding official matters under the control of the DOJ..." Cannon concluded that because this section is "housed within a chapter devoted to the FBI" and an "official" is not the same as an "officer," it doesn't authorize Smith's appointment. She found similar defects in the other provisions.
She then purports to analyze U.S. v. Nixon, which upheld Jaworski's appointment as a special prosecutor under those same statutes. She concludes that the paragraph finding a statutory basis for Jaworski's position and, thus, the authority to issue a subpoena for the recordings, to be dicta—in other words, unnecessary to the holding of the case. Yes, she calls that paragraph merely "prefatory" and "stage setting" for the main event of whether Nixon could withhold those infamous tapes. Meanwhile, she finds Clarence Thomas' concurrence in the immunity case, which no other Justice joined and on a subject irrelevant to the Court's holding, to be so persuasive that she cited it four times.
Finally, on page 65 she begins her analysis of whether Smith is a "principal officer" who must be appointed by the President and approved by the Senate, or an "inferior officer" whose appointment can be vested by Congress in the AG. The D.C. Circuit managed to determine in three paragraphs that Mueller was an inferior officer. Cannon takes 20 pages to... not decide.
But first she looked long and hard at those regulations. She decided that the regulations do not allow AG Merrick Garland enough supervisory authority over Smith. Even though Garland can remove Smith, he can only do so with cause. And even though Garland can amend the regulations as he sees fit, that, too, is not sufficient because the current regulations are what they are. Nevertheless, after all that, Cannon writes: "For the above reasons, the Court sees compelling reasons to reach a principal-officer designation. But because the answer under current Supreme Court precedent is not self-evident, and because this Court need not rely on this ground to dispose of the Appointments Clause challenge in the Motion, the Court elects to leave the matter for future review."
At the end of the day (which is how long it took me to decipher this thing), she dismissed the case based on her conclusion that Garland lacked the explicit statutory authority to appoint even an "inferior officer" to the extent Smith is one (and she's not saying he is!). She also concludes that Smith's pay violates the appropriations clause, because if his appointment is invalid, how can his pay be legal?
So, what does that mean for the myriad other special counsels that were appointed during the Trump administration? Don't worry—Cannon strongly hints that because some of those folks, like David Weiss and John Durham, had been U.S. Attorneys at the time of their appointment, they're fine and dandy since they were confirmed by the Senate.
There's no question Smith will appeal this decision to the Eleventh Circuit and while they were quick to reverse Cannon in the special master scenario, there's no telling how a different panel may rule. But Trump's position still seems like a long shot. In addition, at this point, I'd be very surprised if Smith doesn't also ask the Court of Appeals to remove Cannon from the case. This nonsense has gone on long enough.
Of course, if the Eleventh Circuit finds for Smith, then Trump will appeal to the Supreme Court. And if the Supremes grant cert, well, Cannon apparently thinks she has five votes for her position. In her decision, she not only cites Thomas but also a Brett Kavanaugh concurrence and an Amy Coney Barrett law review article that could be read as questioning the special counsel's legitimacy. She also cites Neil Gorsuch.
Thanks, A.R.!
As a result of Cannon's decision, there are two small-to-medium things that changed yesterday, and one big thing that did not.
One of the things that changed is that Donald Trump's lawyers have opened up a new front in their fight to delay and/or kill his Washington trial. They have already filed motions intended to block the hearings that Judge Tanya Chutkan is likely to hold in the next few months, based on the argument that since the case was brought illegally, it does not exist anymore. It is possible that Chutkan might buy this, but doubtful. If Supreme Court precedent says one thing, and a ruling from an inferior judge on a different judicial circuit says another, then it's Chutkan's job to follow the Supreme Court ruling or rulings.
The second thing that has changed is that Cannon has successfully delivered the goods for Trump, while very possibly extracting herself from future involvement in a case that was beyond her capacity to handle, and that was damaging her reputation with her colleagues and with the larger legal community.
The big thing that has NOT changed is this: Trump is still in big trouble on this front, IF he is not able to reclaim the presidency and to use the powers therein to kill the case. The case had already been pushed back enough that there was no real chance it would be heard before the election. Dealing with Cannon's out-of-left-field decision will extend the timeline even further, but either way, the case was only going to live on if the Democrats retain the White House.
And the case itself remains wholly intact, or nearly so. To start, Cannon might THINK this will survive the appeals process, and even a review from the Supreme Court. However, while the Eleventh Circuit is pretty right-wing, it's consistently rejected her jurisprudence in this case. As to SCOTUS, there may be five justices who have expressed sentiments critical of special counsels. However, the justices are already unhappy about lower courts being willing to completely ignore SCOTUS precedent, and may be unwilling to tolerate Cannon's trampling on U.S. v. Nixon and other decisions.
Further, even if Cannon's finding is upheld, there is nothing stopping a U.S. Attorney from picking up the ball and refiling. There is also nothing stopping Joe Biden from formally nominating Jack Smith as special counsel, and getting him confirmed by the Senate. In either case, the charges could be refiled in South Florida. This would start the process over, including judge selection, and would likely result in a different judge being selected (94.2% probability). There are also some legal analysts suggesting the charges could be refiled in Washington, DC.
Throughout this process, Cannon has appeared to either be incompetent, or in the bag for Trump, or both. What happened yesterday certainly did little to disabuse anyone of those notions. (Z)