Another day, another miraculous escape from serious jeopardy for Donald Trump. Like a Secret Service agent shielding their protectee from danger, Judge Aileen Cannon threw herself in front of a legal bullet heading Trump's way in the Florida classified documents case, throwing the whole thing out after slow walking the case for months
The fact that Cannon would do so is not surprising given her allegiance to the man who appointed her and her already well-documented history of erecting roadblocks for the prosecution, in what looked like a slam dunk case against the former president. What is remarkable is how she did it and what it means — not just for the former president, but for the rule of law in this country.
As the New York Times notes, Judge Cannon “ruled that the entire case should be thrown out because the appointment of the special counsel who brought the case, Jack Smith, had violated the Constitution.” To do so, she twisted or ignored precedent, misconstrued statutes and cast into the dustbin of history decades of practice.
The Washington Post calls attention to the utterly idiosyncratic and arbitrary quality of Cannon’s Monday ruling by reminding us that other courts already have “rejected arguments similar to the one that Trump’s team made in Florida about the legality of Smith’s appointment.” But whether the decision is idiosyncratic and arbitrary or not, it is clearly another step toward a kind of “presidential dictatorship” in which the president, during and after his term of office, is insulated from any form of legal accountability, other than impeachment.
That Judge Cannon took her cues from Justice Clarence Thomas’ concurrence in the recently decided presidential immunity case shows how the world of MAGA judging works. It depends on networks of loyalists using their judicial power to protect former president Trump and, while doing so, steamrolling America’s constitutional framework.
Before looking more closely at Cannon’s decision, let's recall a little bit of the history and practice of special counsels in the United States.
To do that, we need to recall what happened during Watergate when Richard Nixon fired Archibald Cox in what came to be known as the Saturday Night Massacre. At the time, Cox was what was then called a “special prosecutor,” He had been appointed by Attorney General-designate Elliott Richardson and was charged with investigating Watergate, the cover up, and Nixon's involvement in both. On October 20, 1973 Nixon not only forced the dismissal of Cox, but he also accepted the resignations of Richardson and Deputy Attorney General William D. Ruckelshaus. In addition, he abolished the office of the special prosecutor itself.
Five years later Congress, then controlled by the Democrats, passed the Ethics in Government Act. That act gave statutory authorization for the creation of the Office of Special Prosecutor.
Special prosecutors were to be appointed by a special panel of the United States Court of Appeals for the District of Columbia. They would have the authority to investigate allegations of misconduct by federal officials, up to and including the President of the United States. The act gave them a blank check and an unlimited budget to do their work. It also said that they could be dismissed only by the Attorney General for “good cause.”
Right from the start, critics worried about the independence of the special prosecutor and how it fit with the constitutional system. Judge Cannon makes a lot of those criticisms in her opinion.
But, in the 1988 case of Morrison v Olson, the Supreme Court upheld the constitutionality of the Ethics and Government Act and the Special Prosecutor’s Office which it created. Eleven years later, the Ethics in Government Act expired. In its wake, the Office of Independent Counsel was replaced with the Office of Special Counsel, And between then and now special counsels have been used repeatedly.
But neither that history nor those practices mattered to Judge Cannon. She took it upon herself to adopt one of the right-wing legal establishment’s most far-fetched arguments.
In 1999, The Federalist Society laid out what seemed at the time like a cry in the wilderness. It called Special/Independent Counsels “one example of a dangerous trend whereby functions of one branch have been taken away and given to another branch, or to an entity that does not fit within one of the three delineated branches found in the Constitution.”
It saw them as part of what it called “a steady erosion of the strict separation of powers between the three delineated branches of government” and called the Special Counsel a “fourth branch” of government.
As Supreme Court Justice Brett Kavanaugh noted years ago, Justice Antonin Scalia was, during his career on the Supreme Court, the most enthusiastic and vociferous carrier of this critique. Enter Justice Thomas, who on July 1 picked up the baton in the right-wing effort to undo the constitutional status of independent counsels. As the Washington Post explained, “Thomas argued both that the special counsel’s office needs to be established by Congress and that Smith needed to be confirmed by the Senate.” He used his concurring opinion to the immunity ruling to ‘highlight another way in which this prosecution may violate our constitutional structure.’”
And teeing up the issue for Judge Cannon, Thomas urged lower courts to explore this issue. And explore she did, holding two hearings on Trump’s challenge to the assignment of special counsel Jack Smith.
Yesterday, Cannon ruled that the special counsel was not what she called a “principal officer” of the government. But she ruled, contrary to precedent, that Smith’s appointment violated the Constitution’s Appointment Clause.
Congress, she said, is “empowered to decide if it wants to vest appointment power in a Head of Department…. But it…did not so here.” As a result, Jack Smith should have been appointed by the president, subject to senatorial confirmation and removal by the president.
She also found that because the Special Counsel was not subject to a fixed or set budget, Congress’s power to authorize and appropriate money was violated
As Judge Cannon put it, “The Court is convinced that Special Counsel Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme — the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law.”
Along the way, the judge reviewed the history of special counsels and noted that what she called the “lack of consistency” in that history “makes it near impossible to draw any meaningful conclusions about Congress’s approval of modern special counsels like Special Counsel Smith.”
Cannon noted that “the title ‘special counsel’ is of fairly recent vintage. Special-attorney-like figures bore many titles throughout the decades. In the Court’s view,” she said, “this is not an insignificant semantic detail.”
Throughout her opinion, Cannon played fast and loose with precedents that have upheld the constitutionality of operations like Smith’s, finding in each instance that none of them were sufficiently definitive to rely on. And she offered a master class in how not to construe statutes.
The opinion is, as columnist David French says, “a long exercise in the use of structural and historical arguments to argue that the words in the Constitution, case law and the relevant statutes do not quite mean what they seem to so clearly say.”
Finally, like her colleagues on the Supreme Court in the immunity case, Cannon studiously ignored the immediate context. You would barely know that Trump was charged with stealing classified documents from reading what she wrote.
Not surprisingly, Former President Trump has already registered his approval, saying of the news, “I’m thrilled.” Moreover, Justice Scalia is surely crowing in the afterlife, and Justice Thomas will be so pleased that he may be tempted to give Cannon a ride in his RV.
However, Americans dedicated to preserving our constitutional Republic have no reason to be thrilled or to crow. As George Washington Law Professor Paul Berman observes, Cannon’s decision, “if upheld on appeal would end all federal cases against Trump.” It would “remove the ability to have Special Counsels in the future who have the ability to investigate presidential misconduct at all because that president would always have the power to hire and fire such counsels.
"This,” Berman says, “is yet another step toward making the president above the law”
Put simply, Cannon’s decision is astonishing. But it should serve as a wake-up call to voters. When they choose the president in November, they need to remember that they are giving that person the power to nominate federal judges who, like Cannon, may feel greater loyalty to the president who appoints them than to the Constitution that they take an oath to uphold. That should inform the choice they make on Election Day.
