Judge Aileen Cannon’s decision to throw out serious national-security criminal charges in the classified documents case against Donald Trump is legally unsupported, ignores decades of precedent and is deeply dangerous.
At a time when Americans need to trust their institutions, her decision to declare that the appointment of the special counsel overseeing the case, Jack Smith, “violates the Appointments Clause of the United States Constitution” will undermine that trust and the legitimacy of high-level investigations in the eyes of many Americans.
Her decision is quite unlikely to survive the tests of time, or even the appeal Mr. Smith’s office said he intends to make. But it will further delay a case that has moved so slowly under her direction that it was already virtually certain it would never go to a jury before Election Day.
Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.
Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant[s] to the attorney general or special attorney[s].” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.”
Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.” These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law.
I drafted the special counsel regulations for the Justice Department to replace the Independent Counsel Act in 1999 when I worked at the department. Janet Reno, the attorney general at the time, and I then went to Capitol Hill to brief Congress on the proposed rules over a period of weeks. We met with House and Senate leaders, along with their legal staffs, as well as the House and Senate Judiciary Committees. We walked them extensively through each provision. Not one person raised a legal concern in those meetings. Indeed, Ken Starr, who was then serving as an independent counsel, told Congress that the special counsel regulations were exactly the way to go.
Eight separate judges had already rejected the claim that Judge Cannon has now endorsed (including, by the way, the judge presiding over Hunter Biden’s criminal case). It is true that one Supreme Court justice, Clarence Thomas, recently wrote a concurring opinion in the Trump immunity case questioning the legality of the position of special counsel. No other justice joined that opinion, and even Justice Thomas did not come to the conclusions that Judge Cannon did — he simply raised “essential questions” about the office. And his questions ignored a well-trod tradition in America as well as the statutory landscape.
We’ve had special counsels and special prosecutors since at least the time of President Ulysses Grant after the Civil War. That is for a simple reason: We need a system to police high-level executive branch wrongdoing, and the system can’t be run by the president and his appointees alone.
Consider the real-world implication of what Judge Cannon is saying: Under her opinion, Attorney General Garland, not a nonpartisan prosecutor like Mr. Smith, would himself be required to investigate and prosecute the case against Mr. Trump. But Mr. Garland was appointed by President Biden, Mr. Trump’s political rival. Doing so would open himself up to all sorts of accusations.
The converse is even scarier: Imagine a future president suspected of serious wrongdoing. Do we really want his appointee to be the one investigating the wrongdoing? The potential for a coverup, or at least the perception of one, is immense, which would do enormous damage to the fabric of our law.
We had exactly that situation in Watergate. A special prosecutor, Leon Jaworski, sought President Richard Nixon’s Oval Office tapes. Nixon claimed that the prosecutor could not force the release of the tapes because it was an “intra-branch dispute” where the president’s decision was “final.” The Supreme Court, in a unanimous decision, United States v. Nixon, pointedly rejected the claim, saying “Congress has vested in the attorney general” the power to conduct criminal investigations of the government and “vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.” And what laws did the court cite? The very same statutes, Sections 515 and 533, that Mr. Garland cited when appointing Mr. Smith.
“Acting pursuant to those statutes,” the Supreme Court continued, the attorney general “has delegated the authority to represent the United States in these particular matters to a special prosecutor with unique authority and tenure.”
Judge Cannon tried to dismiss those words as “dicta,” meaning that they were not part of the holding of the case, and thus did not constitute a precedent. In fact, they were critical to the court’s holding (and a lot more critical than Justice Thomas’s one-justice concurrence in the Trump immunity case, which she cited several times). Decades have elapsed since the Nixon decision and yet Congress never once altered these laws.
That was so, even though the Justice Department put Congress on clear notice some 25 years ago that it was reading these statutes to authorize the job of special counsel. Congress remained silent even after it saw presidents of both political parties rely on these statutes to do exactly that. And Congress’s silence remained even after court after court in the wake of the Nixon decision read these statutes to authorize the special counsel. None of those were dicta, or even close. That congressional ratification of what the Supreme Court and lower courts found is more than enough to dispose of Judge Cannon’s entire argument.
The Nixon case is not the only Supreme Court decision Judge Cannon blew past. This year, the Supreme Court examined a challenge to the Consumer Financial Protection Bureau, where the challengers said that the board had to be specifically authorized and funded by Congress. In a 7-to-2 originalist decision written by, yes, Justice Thomas, the court said that the Constitution requires no “more than a law that authorizes the disbursement of specified funds for identified purposes.”
That’s exactly what we have here — a statute of Congress that authorizes the Justice Department to spend money on investigations as it deems necessary. Again, if Congress doesn’t like that statute, it can repeal it anytime. Or it can vote to defund Jack Smith’s office. That’s the way our constitutional structure works, not by having a federal judge repeal a statute through judicial fiat. She is a federal judge, not a legislator.
The Court of Appeals for the 11th Circuit, which will hear the promised appeal by Mr. Smith, has already swiftly rebuked Judge Cannon on two different matters for her decisions in the Trump case that were well out of mainstream thinking about the law. This decision is on the way to a third rebuke for her.
Mr. Smith’s brief to the Court of Appeals will write itself. He will presumably cite the Nixon case, the several federal laws enacted by Congress, and point to the fact that Congress has never altered the statutes that the Supreme Court more than half a century ago said authorize special counsels. The fact that court after court has read them to authorize special counsels, and that Congress has never once questioned what the courts have done, will settle the legal question in Mr. Smith’s favor.
In his planned appeal, the only question left for him is whether to take the further step of saying a third rebuke means that Judge Cannon should be removed from the case, based on her highly erratic decisions. Her conclusion that the special counsel is illegal is, after all, not one that is a matter of interpretation. Rather, it’s one where there is a clear legal answer, given by the Supreme Court decades ago and ratified by Congress.
Neal K. Katyal is a professor at Georgetown University Law Center. He was an acting solicitor general in the Obama administration. This article originally appeared in The New York Times.
