Judge Aileen Cannon’s dismissal of the Mar-a-Lago case against President Trump is a wowza moment. She ruled that Special Counsel Jack Smith’s appointment violated the Constitution, that his work was ultra viresand that his funding was without authorization. The judge, on the bench not even a half decade, took a wrecking ball to decades of special counsel precedent. The issue now appears ticketed for higher courts.
There is no doubt that Judge Cannon’s dismissal will be fiercely challenged — and it will be tough sledding for Trump. Mr. Smith could appeal to the riders of the 11th Circuit, which has shown little regard for Judge Cannon. He could also pass the charges along, to be refiled, to a confirmed United States attorney in South Florida. It’s by no means clear that the Supreme Court shares Judge Cannon’s view of all this.
Though, it does look as if Judge Cannon has at least one sympathetic ear among the Nine — the senior justice, Clarence Thomas. He wrote separately in the immunity case last month “to highlight another way in which this prosecution may violate our constitutional structure” — via the same Appointments Clause that Judge Cannon found forbade Mr. Smith’s appointment by Attorney General Garland without statute and confirmation.
The judge displayed no shyness about cutting to the constitutional quick. She writes that the Appointments Clause “is rooted in the separation of powers fundamental to our system of government and to the limitations built into that structure — all of which aim to prevent one branch from aggrandizing itself at the expense of another.” Either Mr. Smith required Senate confirmation, or a law passed by Congress. She found he possessed neither.
The special counsel, for his part, contended that a host of statutes authorized his employment, none of which Judge Cannon found persuasive. She did not reach the question of whether or not he was an inferior or principal officer, because, as she puts it, with the force of an ancient koan, “there can be no valid officer without a valid office.” The judge also discerned that the millions of dollars spent by Mr. Smith violated the Appropriations Clause.
Judge Cannon was boldest when she dispensed with Mr. Smith’s argument that the Supreme Court, in a case involving Special Prosecutor Leon Jaworski of Nixon-era fame, had already endorsed the arrangement under which Mr. Smith operates. The high court ruled in United States v. Nixon that the Attorney General possessed the “power to appoint subordinate officers to assist him in the discharge of his duties.” The judge views that as non-binding.
The ruling likely came as a shock to some, but our A.R. Hoffman has long flagged this line of constitutional reasoning as a dangerous one for the special counsel. In March, he took notice of an “unusual docket note” that suggested the jurist could be worrying over Mr. Smith’s remit. He called this a “possibility that could rock the prosecution of the 45th president.” So it has. More reporting underscored the seriousness of this issue long before today’s ruling.
Judge Cannon found that the ostensible sources of Mr. Smith’s authority — a mishmash of statutes, decisions of other courts, and that paragraph from Nixon — were as solid as a scoop of ice cream left outside on a hot summer’s day in Florida. One legal sage critical of Mr. Smith’s appointment, Seth Barrett Tillman, tells Mr. Hoffman that Judge Cannon has shown herself to be a “model for judges across our land.”
More broadly, this is but one case that implicates due process. Americans transfixed by the manslaughter case of Alec Baldwin were stunned when the judge threw out the whole drama for failure of the government to produce all the evidence to the defense, as demanded under the Brady rules. The case being brought against Trump et al by the State of Georgia now hangs by a thread over attempts by the District Attorney’s public remarks.
The Supreme Court overturned the conviction of Governor McDonnell of Virginia for a due process violation by Justice Department prosecutors overseen by Mr. Smith. A New York State appeals bench threw out the conviction of Harvey Weinstein over a due process violation. One could go on. The point is that, while Judge Cannon’s decision might be stunning, questions over due process are all too common in our courts.
