Hon. Aileen Cannon Wrote A Really Bad Decision

HON. AILEEN CANNON WROTE A REALLY BAD DECISION

By now everyone knows that Hon. Aileen Cannon dismissed the Trump classified documents indictment. The reaction to it has divided along predictable political lines. But many fewer people have actually read the 93-page decision, to understand just how truly bad it is as a matter of judicial craftsmanship.

First, Judge Cannon is the first, and therefore only, judge EVER to strike down the appointment of a special prosecutor. Historically and judicially speaking that makes her so unique that that alone should raise questions. In United States v. Nixon, dealing with special prosecutor Leon Jaworski in Watergate, the Supreme Court actually said that “the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.” Yet Judge Cannon concluded she could simply ignore this language as “dictum.” What District Judge would ignore the Supreme Court’s precedent like that? Extraordinary.

Ever since the Civil War we have had special prosecutors to investigate and pursue charges where political actors would face untenable conflicts. The modern version of this starts with Watergate. Judge Cannon elected not only to ignore the Supreme Court in Nixon. She also expressly disagreed with each and every decision rendered since then upholding the appointment of special prosecutors, including the appointment of Lawrence Walsh in Iran/Contra and Robert Mueller in Trump/Russia. 

She became such a contrarian by construing the general statutes in Title 28 that permit the Attorney General and the Justice Department to allocate authority within the department not to apply to Jack Smith, whom she calls “a private citizen.” Huh?  He’s an employee of the Department of Justice, on the payroll.  And doesn’t the Attorney General have the authority to delegate?  Was Robert Menendez personally prosecuted by Merrick Garland? Doesn’t indictment of a sitting Senator raise the same separation of powers concerns?  Cannon’s reasoning, and her statutory construction, makes no sense.

I’ll give just one example. Section 515 of Title 28 gives the Attorney General the authority to appoint and designate lawyers to pursue investigations: “The Attorney General or any other officer of the Department of Justice, or 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, including grand jury proceedings….” Why doesn’t this language allow Attorney General Garland to appoint Jack Smith?  Similar appointment and delegation powers exist in Sections 509, 510 and 533, among others, and the Department of Justice has issued a regulation pursuant to them to regularize the appointment of special prosecutors, under 28 CFR Sections 600.1-10. But Judge Cannon concluded that Smith had far too much power to fall within these sections. Really?

After construing the relevant statutes not to apply, Judge Cannon goes on to say that if they do apply, they violate the Appointments Clause. That clause of course authorizes the President to appoint superior officers, subject to the advice and consent of the Senate. Again, huh? Jack Smith had to be appointed and confirmed? Even the Appointments Clause says, in its very second sentence, that the President and his superior officers can appoint and hire other officers to assist. Congress recognized as far back as 1789 that it was impractical considering the numbers involved to require each individual federal employee to go through the confirmation process. 

So, what was Judge Cannon’s reasoning to require confirmation in Smith’s case? Quite simply, she concludes that “the authority he attempts to employ as Special Counsel far exceeds the power exercisable by a non-superior officer.” For the third time, huh? Again, under that logic how did the Menendez prosecution or any one of many other similar prosecutions proceed? And what about the power of, say, a general directing troops in wartime? I could give any number of additional examples that would expose the subjectivity, and error, involved in her key judgments.

Apparently, what Judge Cannon wants is for Merrick Garland himself to direct Mr. Smith and his prosecutorial efforts, under the direction and control of the President. Yet that presents the very conflicts and appearances that the appointment of special prosecutors is supposed to alleviate. The Republicans like to complain that the Justice Department is being weaponized against former President Trump, but the appointment of special prosecutors is supposed to be a check against that, and what Judge Cannon seems to want is to encourage such weaponization for any prosecution to be constitutional.  I just don’t get it.

Judge Cannon then goes on to say that an additional reason why Jack Smith’s appointment was unconstitutional is based on the Appropriations Clause.  You’ve got to be kidding me. Congress has to approve and fund each and every appointment of a special prosecutor? Funding for a special prosecutor can’t be carved out from the general appropriation Congress gives the Justice Department each year? The Attorney General and his staff don’t have the discretion to do that? Was there a special appropriation for the Menendez case? 

As I said, we’ve had several special prosecutors since Watergate. At times there has been a special prosecution statute, and at times Congress let that statute lapse. There was no statute when Attorney General Elliott Richardson (for whom I worked after he left government) appointed Archibald Cox as President Nixon’s special prosecutor.  And yet, statute or no statute, the appointment of special prosecutors has always been upheld, until this month.

Let me make a few additional points. First, Justice Clarence Thomas clearly encouraged Judge Cannon to take this approach by saying in his concurrence in the Trump immunity case that he also thought Jack Smith had been unconstitutionally appointed. Now THAT was dicta!

Second, this kind of approach to special prosecutors has been the stuff of Wall Street Journal op-ed pieces and Federalist Society discussion for at least 25 years now. But the approach has never before crossed over the line into mainstream jurisprudence.

Third, the unprecedented nature of Judge Cannon’s ruling in ordinary times might make it likely to be reversed. But these are not ordinary judicial times.  What previously was thought of as mainstream jurisprudence v. conservative thought expressed only at conferences or in op-ed pieces has now become normalized.  Leonard Leo has succeeded!  A Supreme Court that has granted the almost absolute immunity of kings to Presidents very well may uphold Judge Cannon.  And at least one of the nine has already publicly, and unnecessarily, expressed agreement with her approach.

Fourth, if Judge Cannon’s approach were to be adopted, that could spell the end of the January 6 prosecution as well, even if Judge Chutkan were to find a way to navigate between the shoals of official v. unofficial acts to try to hold Trump responsible, immunity notwithstanding. If Jack Smith were unconstitutionally appointed, that would logically apply to both cases. Like the Supreme Court’s immunity ruling, we have recently embarked on some very major changes in the jurisprudence applicable to Presidents and their senior executive officials.

Fifth, Judge Cannon announced her ruling on the opening day of the Republican Convention. Coincidence?  I think not.

Sixth, can this be said to be one of the worst examples of political judging ever? Nope. I still think the worst example is Bush v. Gore, where the Supreme Court appointed a President. Dred Scott, which played a major role in bringing about the Civil War, has to be considered to be up there too. Close behind, however, is Clarence Thomas sitting on January 6 cases when his wife Ginny was herself in the tank for the fraud theory of the last election, which every judge in the country who considered the theory rejected as having no evidentiary support. The fraud was in the claims about the election, not the election itself.  Reasonable people may differ about which of these decisions was the worst, but Judge Cannon’s decision, and its timing, were both really, really bad.

Finally, consider the implications of holding special prosecutors to be unconstitutional. Could Jack Smith simply turn over his file to the U.S. Attorney for the Southern District of Florida, and let him assign the case to a line AUSA there, to review the file and decide if he should indict?  Could the same thing happen in the Justice Department around the January 6 prosecution?  Would Merrick Garland, or even a lame duck President Biden, be able to call the shots?  The Republicans talk about weaponizing the Justice Department, but special prosecutors are supposed to provide some independence from the political process. The Republican approach would lead to complete weaponization. So, Judge Cannon’s approach is illogical for this reason too.  I just can’t find a single good thing about it.      

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