Photo-Illustration: Intelligencer; Photo: Shutterstock
One of the four criminal cases against Donald Trump has officially bitten the dust, for the moment at least.
Judge Aileen Cannon yesterday issued a surprising (but not quite shocking) ruling dismissing DOJ special counsel Jack Smith’s indictment of Trump for retaining classified documents at Mar-a-Lago and obstruction of justice. While it’s become trendy to impugn Judge Cannon’s intelligence, integrity, and motives, anyone who declares that her ruling was definitively right or wrong is just guessing at this point. We’ll find out eventually, and the appeals courts might well eventually reverse Judge Cannon — but the ruling, while drastic in its impact, is not facially preposterous.
It’s important to establish up front that the dismissal has nothing to do with the merits of the Mar-a-Lago indictment. Judge Cannon’s decision says nothing about the strength of the evidence or Trump’s substantive culpability. (In my view, this is the strongest of the four Trump indictments.) Nor does the dismissal turn on any assessment of the political motives of Smith or the Justice Department — contrary to Trump’s tiresome claim that the case is a “witch hunt,” which he repeated immediately after he got the good news.
Judge Cannon’s ruling is purely about constitutional structure. In sum: Under the Appointments Clause, “Officers of the United States” must be nominated by the president and confirmed by the Senate. Judge Cannon accepted Trump’s argument that, as special counsel, Smith holds essentially the same official powers as the attorney general or a U.S. attorney — to investigate, indict, and try federal criminal cases — but was merely appointed by the AG and was neither presidentially nominated nor Senate confirmed. Congress has not passed a law creating the special counsel as an official government position.
Third Degree With Elie Honig
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Smith countered that, even in the absence of a specific statute, Attorney General Merrick Garland appointed Smith pursuant to long-standing federal regulations and as a valid application of the AG’s broad power to delegate law-enforcement authority. Other recent special counsels, including Robert Mueller and David Weiss (on the Hunter Biden cases) made similar arguments in defense of their appointments and successfully overcame constitutional challenges. (Though Smith is arguably different from Mueller or Weiss because the latter two were in fact nominated by a president and confirmed by the Senate for their prior DOJ positions.) So a handful of federal judges have found that the AG can unilaterally pick a special counsel, and now Judge Cannon dissents. She’s all alone in the minority, but there’s not much on the other side, either.
One common criticism of Judge Cannon’s ruling is that she departed from 50-plus years of precedent going back to Watergate. That’s not only incorrect; it’s misleading. In a sense, history lends support to Cannon’s reasoning. Yes, we had independent counsels (as they were then called) back in the 1970s for Watergate and the 1990s for Bill Clinton — but those officers served in a position created by a specific statute, which expired in 1999. That, according to Cannon, is how this should work: If Congress passes a law, go ahead and pick an outside prosecutor; if not, then the attorney general can’t just invent and fill the position himself.
Of course, Judge Cannon’s dismissal of the indictment has turbocharged overwrought calls for her removal, or impeachment, or, who knows, a stint in the stockade. But the suggestion of impeachment is unserious, while removal is extraordinarily rare and unwarranted here. Some point to the 11th Circuit’s pre-indictment reversal of Judge Cannon after she appointed a special master to oversee discovery. If that’s the standard for removal, then say farewell, too, to Judge Tanya Chutkan — beloved by many liberals for her handling of Smith’s 2020 election-subversion case against Trump in Washington, D.C. — who just got reversed by the Supreme Court and excoriated for rushing the case without doing any fact-finding on Trump’s immunity claim.
The claim that Judge Cannon is biased because she has ruled in Trump’s favor doesn’t stand up either. First, it’s not even true; while the judge just granted a whopper for Trump, she also has ruled against him many times over, including on prior motions to dismiss. Second, if “the judge tends to rule in favor of one side” was sufficient to show incurable bias, then bid adieu to Judge Chutkan as well as Judges Kaplan, Engoron, and Merchan — all of whom ruled against Trump on virtually every important decision, typically for good cause. This is what judges do. They decide tough questions. Often, one side wins more than the other. It doesn’t mean the judge is biased.
Just hours after the dismissal, Smith announced that he will appeal to the 11th Circuit. He might well win, eventually; I’d assess the odds are in his favor, though it’s no foregone conclusion. It’ll be a close call whether this first-layer appeal is decided before the election. And whoever loses in the 11th Circuit will surely ask the Supreme Court to take the case, so we’ll be waiting quite a while for a final outcome.
Even if Smith ultimately loses on appeal, Garland can reassign the case to a U.S. Attorney — a “regular” federal prosecutor, that is — and have this person present the case again to a grand jury and obtain a new indictment. But it’ll take months (maybe more than a year) for the full appellate process to play out, and a reindictment would be messy and even more time consuming.
Judge Cannon might end up wrong on constitutional interpretation. Let’s wait and see what the appeals courts say before making broad proclamations on relatively unknown and unprecedented legal issues. But we can’t fairly say that she’s gone off the rails.
This article also appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com
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