Outside Legal Cannon

A shocking dismissal of the Trump federal criminal case in Florida leaves many questions but ironically may provide a clear path to booting a terrible judge.

Composite image courtesy of The Guardian

On Monday, Judge Aileen “Loose” Cannon issued a mind-exploding ruling dismissing the espionage and obstruction case against Donald Trump. Her reason? The appointment of the Special Counsel was not legally authorized.

Let me first say this. Her ruling flies in the face of every legal precedent. No less than eight courts have weighed in on this question before and found to the contrary. Yet somehow Judge Cannon has defied all that legal weight and ruled against the U.S. government.

The timing of the ruling is also very suspect. Judge Cannon has been sitting on the motion to dismiss for 144 days. Yet she issued her ruling on the first day of the Republican National Convention? This smells like legal mischief. She is raising her hand for a quid pro quo appointment to a higher bench during a possible second Trump administration.

In today’s piece, I’ll walk through why Judge Cannon’s ruling is far outside of anything we have ever seen on this question. But while precedent would dictate that she should be reversed by the 11th Circuit, she could theoretically still prevail, setting up a split in the circuits for the Supreme Court to decide. And the current High Court has shown it doesn’t give a damn about decades of precedent. Indeed, that is Cannon’s likely gambit, and it is a dangerous one.

But if she loses, as is likely, she could also pay a heavy consequence: a reassignment of the case to another judge because of her clear bias for Trump.

Why she’s wrong

The language of both the Constitution and the authorizing legislation make clear that the Special Counsel is something the Executive Branch, via its Justice Department, may appoint. 

Jack Smith argued that Congress vested the appointment of “inferior Officers” like the Special Counsel in 28 U.S.C. § 533(4), in which Congress authorized the Attorney General to appoint officials “to conduct such other investigations regarding official matters under the control of the Department of Justice…as may be directed by the Attorney General.”

Pretty damn clear if you ask me.

Before jumping into the legal arguments, it’s important to recognize how long and time-honored the tradition is of appointing Special Counsel to handle politically sensitive matters. President Ulysses S. Grant appointed one some 150 years ago in 1875 during the Whiskey Ring scandal, where distillers bribed Treasury officials to increase profits and evade taxes.

In the 1920s, there was a Special Counsel for the Teapot Dome scandal, where Secretary of the Interior Albert Bacon Fall became the first cabinet member ever sent to prison after he accepted bribes in exchange for petroleum leases.

The question of the Special Prosecutor’s authority in the Watergate investigation was first broached by the Supreme Court in U.S. v. Nixon. (Special Counsel was previously termed “Special Prosecutor.”) In that case, the Supreme Court unanimously signed off on the Special Prosecutor’s authority to issue a subpoena to Nixon for tapes of conversations. 

Yet Judge Cannon, in her infinite wisdom, decided that U.S. v. Nixon  was mere “dictum,” meaning reasoning not essential to the decision before her. She wrote that because Nixon never actually contested the Special Prosecutor’s validity, the question was not squarely before the Supreme Court.

Come on, Aileen. 

It’s clear that the Supreme Court at least approved of the Special Counsel’s very existence. Otherwise, why even consider whether he could legally subpoena the President? Nixon didn’t challenge the very existence of the Special Counsel because it’s crystal clear that the Special Counsel was legally authorized, and no one on Nixon’s team even presumed to challenge the validity of the appointment.

Judge Cannon also ignored another Supreme Court precedent from 1988, Morrison v. Olson, which upheld a law called the Independent Counsel Act. Prosecutors have cited that decision over the decades to consistently argue that special counsels did not violate the separation of powers. Cannon rejected this argument, however, ruling that the statute it upheld had lapsed. 

But Garland had cited four other statutes enacted by Congress—including the one discussed at the top of this section—that broadly authorized him to make Smith’s appointment. Yet Judge Cannon believes she somehow knows better than Congress about how to go about actually authorizing the appointment by statute.

As Adam Klasfeld of Just Security wrote in his assessment of her ruling, no less than eight different judges have ruled on the practice of having the AG appoint a special prosecutor, many quite recently when the validity of Special Counsel Robert Mueller’s appointment was contested. Those judges repeatedly rejected arguments from criminal defendants like Paul Manafort that the appointment of the Special Counsel somehow violates the principle of Separation of Powers or otherwise lacks authority. The D.C. Circuit Court of Appeals went as far as to say that Nixon and Morrison were binding precedent when it came to challenges to Mueller’s appointment. As Klasfeld notes, “Cannon hand-waved that out-of-circuit precedent as relying on ‘presuppositions’ that she rejected.”

Funny how someone so protective of executive power suddenly kneecaps it when the question is whether Jack Smith is authorized to prosecute Donald Trump.

Justice Clarence Thomas with the set-up

As noted above, Judge Cannon sat for over five months on the motion to dismiss on grounds the Special Counsel was not properly appointed. So what changed to cause her to pen the ruling and dismiss the case now?

Anyone paying attention can see exactly how this went down. Justice Clarence Thomas, on the last day of the term, issued a concurring opinion in Donald Trump v. United States on presidential immunity, observing that he didn’t even believe the Special Counsel was legally appointed. But the legitimacy of the Special Counsel wasn’t at issue in that case; once again no one had argued it, and honestly, no one asked you, Clarence.

Still, Judge Cannon took her cue to spike Thomas’s set-up, knowing it would give her ample legal cover. She cited Thomas’s concurrence three times in her ruling.

This sequence of events is simply galling. Justice Thomas, who is married to Ginni Thomas the insurrectionist, should have recused himself from the immunity case entirely. Instead, as legal analyst Marcy Wheeler noted, he wrote a how-to manual on booting the Special Counsel, which Judge Cannon then followed to dismiss the entire case on the opening day of the Republican National Convention.

So now what?

In a rare public statement coming right the heels of the ruling, Jack Smith’s spokesman Peter Carr issued an uncharacteristically terse jab at Judge Cannon:

“The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel. The Justice Department has authorized the Special Counsel to appeal the court’s order.”

Smith’s office has said it will appeal Cannon’s ruling. It goes up first to the 11th Circuit, which has smacked Cannon down twice before in a related matter. That panel could and should agree with the weight of precedent including the D.C. Court of Appeals and act to reverse Cannon’s dismissal. From there, Trump and the other defendants could seek a review by the entire Court sitting en banc or could appeal it up to the Supreme Court.

So far, only Justice Thomas has voiced any opinion on the question of the validity of the appointment of Smith as Special Counsel. While it’s possible that he could pick up more support from other radicals, a curtailment of the executive’s power to appoint something plainly authorized by Congress would be a departure from the Court’s rightward march toward granting greater authority to the presidency. And if Trump loses the presidential election, I could see a Supreme Court simply passing on taking up the case, especially if both the D.C. and the Eleventh Circuits are in agreement. 

If Cannon gets reversed, Smith might use the opportunity to move for a reassignment of the case. On this he already has some solid arguments, including previous instances where Cannon seemed to bend over backward to help Trump and the present ruling that flies in the face of all precedent and the plain text of the authorizing statutes.

All of this will take time, which is highly frustrating. But there was already zero chance that the case would go to trial before the election, so the silver lining here is that Judge Cannon may get reversed and booted from the case down the line if and when Trump loses the election. 

Indeed, the cynic in me believes she issued her ruling on Monday to both signal her allegiance to someone she hopes will pay her back as well as to wash her hands of the case if she possibly can. She is in over her head, and she probably doesn’t want to be the judge presiding over a strong case against Trump, where the jury verdict goes against him and she has to do the sentencing. 

Indeed, we should assume that Cannon was always going to dismiss the case one way or the other, so better that she did it now under a legally weak argument than after the jury was empaneled and double jeopardy had attached. Now at least there is a chance the case will be reassigned and proceed under a judge who isn’t a fan girl of Donald Trump.