Judge Cannon Dismisses The Classified-Documents Case

‘Special Counsel Jack Smith’s Appointment violates the Appointments Clause of the United States Constitution.’

Judge Aileen M. Cannon (public domain - U.S. District Court for the Southern District of Florida)

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Oops, she did it again. Judge Aileen Cannon (S.D. Fla.) issued yet another newsworthy ruling—bonkers or bold, depending on your point of view—in the classified-documents prosecution of former president Donald Trump.

Or maybe I should say “former” prosecution, since Judge Cannon just dismissed it. Here’s the opening paragraph of her 93-page order in United States v. Trump (cleaned up, as I’ve done with most of the quotations here):

Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order. The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution. Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause, but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding.

Considering that Judge Cannon heard oral argument on this issue on June 21 and 24, issuing a ruling in less than a month qualifies as “rocket docket” speed by her standards.

But she did have some great research assistance—from a Supreme Court justice. As Professor Leah Litman tweeted:

Justice Thomas’s “Cannon-currence” worked.

In the Trump immunity case, Justice Thomas wrote separately to suggest the special counsel was unlawfully appointed; the reasoning laid out the roadmap for this (wrong) result/decision.

No other justice joined the Thomas concurrence in Trump v. United States. But I’m guessing we’ll know their views on this issue soon enough—and Judge Cannon’s order includes favorable citations to no fewer than five justices (Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett).

Here are excerpts from Judge Cannon’s opinion (cleaned up and with no external quotation marks added, since these are all direct quotations):

• The Motion before the Court challenges the legality of Special Counsel Smith in two consequential respects, both of which are matters of first impression in this Circuit, and both of which must be resolved before this prosecution proceeds further.

• The first is a challenge to his appointment under the Appointments Clause, which provides the exclusive means for appointing “Officers of the United States.” The Appointments Clause sets as a default rule that all “Officers of the United States”—whether “inferior” or “principal”—must be appointed by the President and confirmed by the Senate. It then goes on to direct that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in Heads of Departments.” The Motion’s second challenge is rooted in the Appropriations Clause, which prohibits any money from being “drawn from the Treasury” unless such funding has been appropriated by an act of Congress.

• Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment—28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise.

• The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.

• The Court now proceeds to evaluate the four statutes cited by the Special Counsel as purported authorization for his appointment—28 U.S.C. §§ 509, 510, 515, 533. The Court concludes that none vests the Attorney General with authority to appoint a Special Counsel like Smith, who does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction.

• Special Counsel Smith argues that the use of special attorneys throughout American history “amply confirms the Attorney General’s authority to appoint the Special Counsel here.” The Court disagrees. At most, the history reflects an ad hoc, inconsistent practice of naming prosecutors from both inside and outside of government (typically in response to national scandal) who possessed wildly variant degrees of power and autonomy. The lack of consistency makes it near impossible to draw any meaningful conclusions about Congress’s approval of modern special counsels like Special Counsel Smith—much less its acquiescence to Section 515 as a vehicle for such appointments.

• Congress—historically, and in the present moment—has shown that it knows how to create offices for special counsels. In 1924, Congress did so in response to the Teapot Dome scandal….. In 1978, Congress passed the much-discussed (and now-defunct) Independent Counsel Act. In fact, there are statutes on the books right now that create offices for “special counsels” with unique jurisdictions…. All this stands to demonstrate that Congress knows how to legislate in this space. And when it does, it does so expressly and unequivocally.

• In the end, there does appear to be a “tradition” of appointing special-attorney-like figures in moments of political scandal throughout the country’s history. But very few, if any, of these figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision. When scrutinized, this spotty historical backdrop does not “amply confirm[] the Attorney General’s authority to appoint the Special Counsel here.”

• On a more fundamental level, adopting the Special Counsel’s untenable interpretation of Sections 515(b) and 533 erodes the “basic separation-of-powers principles” that “give life and content” to the Appointments Clause by wresting from Congress its constitutionally prescribed role in the officer-appointing process. It also destabilizes Congress’s carefully crafted statutory structure for DOJ.

• The parties disagree about the precedential value of a passage from United States v. Nixon [which states that Congress “has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533.”]

• Following a comprehensive review of the Supreme Court record, the Court concludes that the disputed statement from Nixon is dictum. The issue of the Attorney General’s appointment authority was not raised, briefed, argued, or disputed before the Nixon Court. Nixon is undoubtedly precedential in several areas—for example, in its pronouncements on the justiciability of an intrabranch controversy; the test for issuing Rule 17(c) subpoenas; and application of executive privilege in the face of a valid subpoena. Those issues were presented, argued, and carefully considered. The same is not true of the Attorney General’s statutory appointment authority. At most, Nixon assumed that antecedent proposition, without deciding it.

• Having determined that the disputed passage from Nixon is dictum, the Court considers the appropriate weight to accord it. In this circuit, Supreme Court dictum which is “well thought out, thoroughly reasoned, and carefully articulated” is due near-precedential weight…. The Nixon dictum is neither “thoroughly reasoned” nor “of recent vintage.” For these reasons, the Court concludes it is not entitled to considerable weight.

• This brings the Court to its final point on the Appointments Clause challenge, prior to addressing remedy. Up to this juncture, the Court has proceeded under the premise, advanced by Special Counsel Smith, that he is an “inferior Officer,” not a principal officer requiring Presidential nomination and Senatorial consent…. [T]he Court elects, with reservations, to reject the principal-officer submission and to leave the matter for review by higher court.

• The Court turns lastly to the remedial question: what to do about the absence of “Law” authorizing Special Counsel Smith’s appointment? Defendants seek dismissal of the Superseding Indictment, arguing that “Jack Smith lacks the authority to prosecute this action,” and that “any actions [thus] taken by Smith are ultra vires.” …. Because Special Counsel Smith’s exercise of prosecutorial power has not been authorized by law, the Court sees no way forward aside from dismissal of the Superseding Indictment. And the Special Counsel does not propose an alternative course.

• For all of the reasons the Court found no statutory authority for the appointment, Special Counsel Smith’s investigation has unlawfully drawn funds from the Indefinite Appropriation…. The Court need not reach the question of remedy here, having found the Appointments Clause violation to warrant dismissal. But as discussed below, there is good reason to believe that the Appropriation Clause violation serves as a separate, independent basis to dismiss.

• Upon careful study of the foundational challenges raised in the Motion, the Court is convinced that Special Counsel’s 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.

• The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether in this case or in another case, whether in times of heightened national need or not. In the case of inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel’s strained statutory readings. Nor does his appeal to inconsistent “historical practice” supplant the absence of textual authorization for his appointment. The same structural emphases resonate in the context of the Appropriation Clause, which “embodies a fundamental separation of powers principle—subjugating the executive branch to the legislatures power of the purse.”

• In the end, it seems the Executive’s growing comfort in appointing “regulatory” special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny. Perhaps this can be traced back to reliance on stray dictum in Nixon that perpetuated in subsequent cases. Perhaps it can be justified practically by the urgency of national crises. Or perhaps it can be explained by the relative infrequency of these types of investigations, by congressional inattention, or by the important roles that special-counsel-like figures have played in our country’s history. Regardless of the explanation, the present Motion requires careful analysis of the statutory landscape to ensure compliance with the Constitution, and the Court has endeavored to do so with care.

• The Court thus returns to where it started. The Appointments Clause is “among the significant structural safeguards of the constitutional scheme.” So too is the Appropriations Clause, which carefully separates Congressional control of the “purse” from Executive control of the “sword.” The consequences of relaxing either of those critical provisions are serious, both in this case and beyond. As Justice Frankfurter explained in his opinion in Youngstown, “[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). “[I]llegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886).

And that’s all she wrote. Again, these are excerpts; you can access the full document here.

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