Neal Katyal Slams Judge Cannon’s ‘Cuckoo’ Decision to Dismiss Trump

A Supreme Court lawyer and former acting U.S. attorney general who drafted the special counsel rules in the late 1990s blasted U.S. District Judge Aileen Cannon’s decision to dismiss Donald Trump’s Mar-a-Lago indictment as a “cuckoo” decision that will surely be overturned on appeal.

During an interview Tuesday, Neal Katyal told CNN’s chief international anchor Christiane Amanpour that he was “surprised” to see Cannon dismiss the case of special counsel Jack Smith because of a nomination clause violation. While Katyal predicted the decision “would not stand,” he pointed out that the damage had been done because the dismissal effectively ensures there will be no trial under the Espionage Act until after the 2024 election.

“Yes, I was surprised. I think, Christiane, that this decision is a coin to Cocoa Puffs and will not be upheld and upheld by the appellate court and the Supreme Court of the United States,” he said. “It will certainly delay the case, and certainly after the election, because appeals take time.”

“Donald Trump was charged with taking highly classified and confidential information without permission, storing it at his Mar-a-Lago golf club, and then, most importantly, lying about it to federal investigators when asked about the documents,” Katyal added, summarizing the charges in the dismissed indictment. “(That’s) what he was charged with, and now a judge comes in and tries to overturn the prosecutor on a cuckoo theory.”

Katyal recalled a legal story, noting that challenges to special counsel powers have repeatedly failed in courts, with the most memorable case arguably being special counsel Robert Mueller’s Russia investigation.

“I think the most important point about this case, Christiane, is that eight different judges over the last many years have rejected this same argument,” Katyal said, including a Trump-appointed judge who presided over the gun-related trial of President Joe Biden’s son, Hunter Biden. “And the special counsel regulations that Jack Smith is appointed under, I should say, as a matter of disclosure to all of our viewers, I developed them in 1999 when I was a young Justice Department employee in connection with the entire Justice Department.”

Katyal said that when he and then-U.S. Attorney General Janet Reno went to Capitol Hill and briefed the House and Senate on the legislation, they were not met with resistance similar to that seen with Cannon’s dismissal.

More from Law&Crime: Mar-a-Lago Judge’s Destruction of Jack Smith’s Authority Predicts 11th District Showdown

More Law & Crime Coverage: Judge Cannon Repeatedly Cites Judge Clarence Thomas in Order to Dismiss Mar-a-Lago Case

More from Law&Crime: After ‘extensive review,’ judge dismisses Trump’s Mar-a-Lago indictment, finds Attorney General Merrick Garland illegally appointed Jack Smith as special counsel

“Not one person from either political party (in Congress) has said a word about this kind of idea that a special counsel was not authorized, and that’s because we’ve had special counsel for over a century, since President Ulysses Grant,” Katyal said. “And now this judge comes in and with the stroke of a pen tries to reverse these very serious charges against Donald Trump.”

In an editorial published Tuesday in The New York Times, Katyal went a step further, not calling the firing “cuckoo” but calling it “deeply dangerous.”

“Judge Aileen Cannon’s decision to dismiss serious national security criminal charges involving classified documents against Donald Trump lacks legal merit, ignores decades of precedent, and is deeply dangerous,” the first line reads, predicting that the dismissal “is unlikely to survive the test of time or even the appeal that Mr. Smith’s office intends to file.”

Katyal said it was “patently false” that “no law of Congress authorizes a special counsel,” once again pointing to regulations he has authored and laws that both Smith and U.S. Attorney General Merrick Garland have cited to support the special counsel’s authority to prosecute Trump.

“The 11th Circuit Court of Appeals, which will hear Mr. Smith’s promised appeal, has already swiftly reprimanded Judge Cannon on two separate issues for her decisions in the Trump case that were far from mainstream legal thinking,” Katyal wrote. “This decision is on track to her third reprimand.”

In her order, Cannon said she concluded that Smith’s appointment and funding violated the Constitution after “careful study” and repeatedly cited Justice Clarence Thomas’ lone concurrence in Trump v. United States — the Jan. 6 Supreme Court immunity case — in which the conservative justice expressed concerns that Smith’s “private citizen” appointment violated the law.

“Even if the Special Counsel has a valid position, questions remain as to whether the Attorney General has filled that position under the Appointments Clause,” Thomas wrote. “For example, it must be determined whether the Special Counsel is a principal or junior official. If the former, his appointment is void because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officials must be. Even if he is a junior official, the Attorney General may appoint him without a presidential nomination and Senate confirmation only if ‘Congress . . . has lawfully made an appointment’ to the Attorney General as ‘Head(s) of the Department.’”

In dismissing the statutory authorities Garland cited in his order appointing Smith as insufficient because they did not appear to “create an office for the Special Counsel, and especially not with the clarity typical of previous statutes used for that purpose,” Thomas raised separation-of-powers issues that Cannon addressed two weeks later.

“In sum: The Appointments Clause is a critical constitutional limitation under the separation of powers and gives Congress a discretionary role in determining the appropriateness of granting appointment authority to junior officials,” Cannon wrote. “The position of Special Counsel effectively usurps this important legislative authority, transferring it to the Head of Department, and in the process threatening the structural freedom inherent in the separation of powers.”

In response, the Office of the Special Counsel, through a spokesman who almost never speaks, announced it would appeal to the U.S. Court of Appeals for the 11th Circuit because Cannon’s ruling “diverges from the uniform conclusion of all prior courts that have considered the issue that the Attorney General has the statutory authority to appoint a Special Counsel.”

Sam Smith didn’t say a word when spotted after being released.