From the start of the investigation into Donald Trump’s mishandling of classified documents, U.S. District Judge Aileen M. Cannon has seemed inclined to act in favor of the president who appointed her. Now, Cannon might be poised to issue her most audacious ruling yet, on Trump’s far-fetched bid to have the indictment dismissed on the grounds that special counsel Jack Smith’s appointment is constitutionally invalid.
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From the start of the investigation into Donald Trump’s mishandling of classified documents, U.S. District Judge Aileen M. Cannon has seemed inclined to act in favor of the president who appointed her. Now, Cannon might be poised to issue her most audacious ruling yet, on Trump’s far-fetched bid to have the indictment dismissed on the grounds that special counsel Jack Smith’s appointment is constitutionally invalid.
This is the kind of Hail Mary motion that should have been dispatched quickly after Trump’s lawyers filed it in February. But that’s not the Cannon way. Instead — four months later, and more than a year after Trump was indicted — she is holding a day and a half of oral argument on the issue. She will be hearing not only from Trump and prosecutors but, unusually, also from outside parties contending for and against the legitimacy of the special counsel.
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Perhaps, in the end, Cannon won’t take the plunge and kill the case. (Such a ruling shouldn’t jeopardize the election interference case pending in Washington.) But at this point, after months of vacillating between slow-walking the case and issuing rulings favorable to Trump, Cannon can’t be underestimated.
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The essence of Trump’s claim — backed by, among others, former attorneys general Edwin Meese III and Michael Mukasey — is that Smith’s naming as special counsel violates the Constitution’s appointments clause. That provision requires that “Officers of the United States” be nominated by the president and confirmed by the Senate. But the appointments clause allows Congress to give the “Heads of Departments” — in this case the attorney general — authority to appoint “inferior officers.”
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“The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States,”
they write. “As such, Jack Smith lacks the authority to prosecute this action.”
Smith “wields extraordinary power, yet effectively answers to no one,”
says the brief filed on behalf of Meese and Mukasey. “He has no more authority to represent the United States in this Court than Tom Brady, Lionel Messi, or Kanye West.”
It’s true that the Supreme Court has bolstered the reach of the appointments clause in recent years. Still, the problem with the anti-Smith argument is threefold: text, history and precedent.
First, the law empowers the attorney general to make such appointments. For example,
28 U.S.C. §533 authorizes the attorney general to “appoint officials … to detect and prosecute crimes against the United States.” Likewise,
28 U.S.C. §515 provides that “any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal … which United States attorneys are authorized by law to conduct.”
And by the way, under the special-counsel regulations, Smith is bound to follow Justice Department rules and is subject to being overruled, or even removed for cause, by the attorney general.
Second, special counsels have been appointed for decades — see Archibald Cox in Watergate through Robert S. Mueller III in the Trump investigation.
Third, courts have already considered several constitutional challenges to special counsels and tossed them out. The Supreme Court
dealt briefly with the issue in 1974 in
U.S. v. Nixon, the Watergate tapes case, upholding the attorney general’s authority under §533 and other laws to delegate authority to the special prosecutor.
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In 1987, the U.S. Court of Appeals for the District of Columbia Circuit
rejected a challenge to the authority of Lawrence E. Walsh, the Iran-contra independent counsel, who had been given a parallel appointment under Justice Department regulations because of constitutional questions about the independent-counsel law, which has since expired. “We have no difficulty concluding that the Attorney General possessed the statutory authority to create the Office of Independent Counsel: Iran/Contra and to convey to it the ‘investigative and prosecutorial functions and powers’ described in … the regulation,” the court said.
And in 2019, the D.C. Circuit, citing those cases,
threw out a challenge to Mueller’s appointment on the same grounds as those being pressed by Trump’s lawyers before Cannon. “Because binding precedent establishes that Congress has ‘by law’ vested authority in the Attorney General to appoint the special counsel as an inferior officer, this court has no need to go further to identify the specific sources of this authority,” it said.
But here we go. Cannon will hear arguments on the appointments clause issue on Friday and, on Monday, the even more tendentious question of the funding for his office, which in any event wouldn’t jeopardize his ability to prosecute the case. (A 1987 law creates continuing appropriations to “pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to the provisions of [the now-lapsed independent-counsel statute] or other law.”)
This is all of a piece with Cannon. Even before the Trump indictment landed in her court, she seemed to plant her flag with Team Trump. After the FBI searched Mar-a-Lago for classified documents, Cannon granted Trump’s motion to appoint a special master to review the seized material; the 11th Circuit slapped her down.
She has dawdled in making key decisions, expressed annoyance with the prosecutors and tended to rule in Trump’s favor. The case was once set to go to trial in May — it’s since been postponed indefinitely.
Now, in addition to the challenge to Smith,
she is weighing whether to indulge the Trump lawyers’ bid to root around in internal government discussions of the classified-documents case.
They assert that the special counsel “has disregarded basic discovery obligations and DOJ policies in an effort to support the Biden administration’s egregious efforts to weaponize the criminal justice system in pursuit of an objective that President Biden cannot achieve on the campaign trail: slowing down President Trump’s leading campaign in the 2024 presidential election.” She has scheduled three days of hearings on this issue after the Smith arguments.
This judge is, sorry to say, one loose Cannon.
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