Judge Cannon's Trapdoor

Judge Aileen Cannon's decision to dismiss the documents case against former President Donald Trump based on the conclusion that Special Counsel Jack Smith was unlawfully appointed can be dissected and analyzed along at least three dimensions: (1) whether it's correct as a matter of law; (2) its immediate political impact, especially on the November election; and (3) the contradiction it embodies. Here I'll say a few brief words about each.

(1) Judge Cannon's Argument. Jack Smith essentially has the powers of a U.S. Attorney. U.S. Attorneys are nominated by the President and confirmed by the Senate, but they almost certainly need not be. The Constitution's Appointments Clause requires that principal officers be appointed that way but a U.S. Attorney or Special Counsel is almost surely at most an "inferior officer," as the Supreme Court held with respect to the Independent Counsel in 1988 in Morrison v. Olson.

Judge Cannon resists that conclusion because . . .  reasons. She says Smith is a principal officer because his powers are relevantly different from those of special prosecutors under the expired Independent Counsel Act. However, she doesn't rely on that conclusion for her bottom line. She ultimately holds that even assuming that Smith is an inferior officer, he was appointed unlawfully.

The Constitution allows that "Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." Attorney General Merrick Garland is the head of a department, and he appointed Smith, so what's the problem?

According to Judge Cannon, Congress did not "by law vest" appointment power for special prosecutors in the Attorney General. Her argument relies on parsing the words of the statutory provisions Smith invoked in connection with other statutory provisions to conclude that, in context, they do not provide the relevant authority.

If Judge Cannon were writing on a blank slate, her text-plus-context statutory interpretation argument would not be completely frivolous. It is the same argument as Justice Clarence Thomas sketched in his concurrence in the Trump Immunity Case.

However, Thomas and Cannon were not writing on anything resembling a blank slate. As numerous other commentators have observed, theirs is a tendentious reading of the relevant statutes that flies in the face of a long history of special prosecutors appointed by the Justice Department. Rather than go into detail here, I'll refer interested readers to a good explainer in the context of the Mueller investigation: this 2018 essay by Professor Martin Lederman.

(2) Immediate Political Impact. The nearly certain short-term impact of Judge Cannon's ruling will be to further delay a case that was already highly unlikely to go to trial before the election--as the appeals court and perhaps the Supreme Court take their time.

A number of people have suggested that this ruling and Judge Cannon's other rulings bespeak a bias that could lead to her being removed from the case to make way for a judge who will move with greater alacrity. Although I agree that she has handled the case very badly and in a way that almost always benefits Trump, I am doubtful that she will be removed. And even if she is removed, I doubt that there is time for a more determined judge to move the case fast enough for a trial before the election.

Could the Justice Department avoid all of this trouble by replacing Jack Smith with, say, the U.S. Attorney for the Southern District of Florida? Maybe, but doing so would be cumbersome. The replacement would need to get up to speed on an extremely complex case. The staff currently working for Smith could be reassigned, but even so, Smith is critical to the case, so replacing him would itself result in delay.

Moreover, it might not even work. Replacing Smith without obtaining a reversal of Judge Cannon's ruling would leave the indictment dismissed. True, the U.S. Attorney could refile the indictment but at that point one imagines that Trump's legal team would argue that everything that has transpired so far is void and the entire case needs to start over. There would then be briefing on that question and of course more delay. And the remedial portion of Judge Cannon's opinion strongly indicates that she thinks everything that has happened since Smith's appointment in November 2022 is void.

(3) Witch Hunt, Schmitch Hunt. The 93-page opinion contains a fair bit of high-minded rhetoric to the effect that the Appointments Clause embodies the sacred value of separation of powers. The claim is dubious on the merits, but it also tends to obscure what is actually going on. Like the SCOTUS decision in the Trump immunity case, in the name of separation of powers and checks and balances, Judge Cannon's opinion concentrates power.

Donald Trump has repeatedly asserted that the four criminal cases against him are the result of Democrats--and especially President Biden--weaponizing the Department of Justice against him. Of course this is typical Trumpian projection. Never mind that two of the cases are in state court, where the President lacks any authority, or that Trump has adduced no evidence to support these wild allegations.

Incapable of experiencing shame, Trump nonetheless moved to dismiss the documents case on the ground that Smith was insufficiently beholden to the Democratic Attorney General and President. And Judge Cannon agreed. After all, had AG Garland and a Biden-appointed U.S. Attorney brought the documents case, Judge Cannon's reasons for dismissal would be wholly inapposite.

Garland seems to have walked into a trap. Seeking to avoid charges of partisanship by distancing himself and the President from the investigation and prosecution of the prior President, Garland appointed a Special Counsel. That appointment, Judge Cannon says, was itself unlawful. Thus, it seems, Garland avoided political blowback by courting legal blowback.

But that framing is naive. There was never going to be a way to hold Trump accountable for his crimes while his faithful appointees and other co-partisans occupy key judicial positions. Until quite recently, few constitutional lawyers would have dreamed that a former President has immunity to criminal prosecution for the most heinous acts accomplished through official means or that the long tradition of special prosecutors was unlawful. Had Garland not appointed Smith but pursued the documents case using regular Justice Department personnel, Cannon would have found some other reason either to dismiss the charges or accomplish the equivalent through delay after delay.

Garland and Smith did not stumble into a trap. They fell through a trapdoor. If it hadn't been this one, it would have been some other.