Opinion | And Poof! Years of Special Prosecutor Rulings Overturned by Trump’s Judge

Now, U.S. District Judge Aileen M. Cannon has weighed in, dismissing the Mar-a-Lago documents case against Trump on Monday on the grounds that the appointment of Jack Smith as special counsel was unconstitutional.

Is there anything this judge won’t do to help the president who appointed her? It certainly seems that way.

Cannon had been putting off prosecuting Trump since the case landed in her hands more than a year ago. Now she’s dropped it altogether — five months after Trump’s lawyers asked her to.

The move is appealable to the 11th Circuit. Smith could try to refile in a different jurisdiction, with a different judge. Attorney General Merrick Garland could hand over the investigation to a run-of-the-mill federal prosecutor.

But justice for Trump is being delayed again, certainly until after the election. He is credibly accused of unlawfully withholding secret documents and then obstructing justice when government officials sought to retrieve them. The likelihood that he will be held accountable for that conduct grows smaller by the day.

The argument that Smith’s appointment was illegal rests on the Appointments Clause of the Constitution. This clause states that “Officials of the United States” must be nominated by the president and confirmed by the Senate, but it also allows Congress to grant “Heads of Department”—in this case, the attorney general—the authority to appoint “inferior officers,” subject to supervision and removal. The primary justification is to protect and strengthen the constitutional separation of powers by ensuring that the exercise of executive power is subject to congressional approval.

In the secret documents case, Smith argued that he was subject to Garland’s supervision and was therefore a junior officer, not a “principal” officer subject to Senate confirmation. He cited a set of statutory provisions that authorize the attorney general to hire outside counsel: 28 U.S.C. §533 authorizes the attorney general to “appoint officers … for the purpose of detecting and prosecuting offenses against the United States,” while 28 U.S.C. §515 provides that “any attorney specially appointed by the attorney general by law may, when expressly directed by the attorney general, conduct any legal proceedings, civil or criminal … to which the attorneys of the United States are authorized by law.”

Smith also pointed to precedent. The Supreme Court briefly addressed the issue in 1974 in United States v. Nixon, the Watergate tapes case, confirming the Attorney General’s authority under Section 533 and other statutes to delegate authority to a special prosecutor.

In 1987, the United States Court of Appeals for the District of Columbia Circuit dismissed a challenge to the authority of Lawrence E. Walsh, an independent counsel in the Iran-contra case who had been granted concurrent standing under Justice Department regulations because of constitutional concerns about the Independent Counsel Act, which has since expired.

“We have no difficulty in concluding that the Attorney General had the statutory authority to establish the Office of the Independent Legal Counsel,” the court stated.

And in 2019, the District of Columbia Circuit, citing those cases, dismissed a challenge to Mueller’s appointment on the same grounds that Trump’s lawyers argued before Cannon. “Because compelling precedent establishes that Congress ‘by operation of law’ has vested in the Attorney General the authority to appoint a Special Counsel to a junior official, this Court need not go further to identify the specific sources of that authority,” it said.

Cannon was not impressed. She said it was a difficult decision whether the special counsel was a junior officer or, as Trump has claimed, one whose nomination requires Senate confirmation — something Cannon called “a point worth considering given the virtually unlimited authority given to Special Counsel Smith.”

But, she said, given Smith was a junior officer, there was no statutory basis for his appointment, meaning he could not proceed, and the case was dismissed. But Cannon did not. To be sure, she said, funding for Smith’s office also violated the Appropriations Clause because Congress did not specifically authorize paying for special counsels.

To reach this extraordinary conclusion, Cannon had to read the legislation authorizing the attorney general to include outside counsel in the most limited way possible and reject Smith’s “strained statutory arguments.” She had to dismiss the longstanding practice of appointing special prosecutors as a “patchy historical setting.”

She also had to dismiss the Supreme Court’s decision rejecting Nixon’s challenge to the Watergate special counsel as mere “dicta” rather than binding precedent. She also had to dismiss two opposing D.C. Circuit Court rulings as “an extra-circuit authority,” as if a court with far greater experience in special counsel cases didn’t deserve significant deference. All in all, it was 93 pages of Trump bending over backwards.

In this endeavor, she was aided and abetted by Justice Clarence Thomas’s ill-founded concurring opinion earlier this month in Trump’s immunity case. Thomas had no right to raise the issue of whether Smith was lawfully appointed—that was not raised in the immunity case—but Cannon, not surprisingly, cited his concurring opinion three times.

Cannon framed her motion as a defense of the “significant structural safeguards of the constitutional system.” She quoted Justice Felix Frankfurter in Youngstown Sheet & Tube Co. v. Sawyerwarning ominously that “the accumulation of dangerous power will not happen overnight.”

Dangerous power, really? You wouldn’t conclude from her opinion that the purpose of the special counsel rule is to assure the public that political appointees aren’t driving the outcome of sensitive cases. Smith’s alternative wasn’t to drop the charges—it was to leave the politically charged investigation in full control of Garland. Whatever the justifiable criticisms of the special counsel’s work, there are costs to removing this tool from the Justice Department’s toolbox.

This gun isn’t just loose. It didn’t fire.