Since the start of the investigation into Donald Trump's mishandling of classified documents, U.S. District Judge Eileen M. Cannon has seemed inclined to rule in favor of the president who appointed her. Now Judge Cannon may be poised to issue her boldest ruling yet on Trump's outlandish request to dismiss the indictment on the grounds that the appointment of Special Counsel Jack Smith is constitutionally invalid.
It's the kind of Hail Mary motion that should have been filed soon after Trump's lawyers filed it in February. But that's not Cannon's approach. Instead, four months later, more than a year after Trump was indicted, she will hold a day and a half of oral argument on the matter. She will hear not only from Trump and the prosecutors, but also, unusually, from outside parties who argue for a special counsel.
Perhaps Cannon ultimately won't take the plunge and end the litigation (though such a decision shouldn't jeopardize the election interference lawsuits pending in Washington), but after months of wavering between moving slowly through the litigation and ruling in Trump's favor, Cannon can't be underestimated.
The core of Trump's argument, supported by former Attorneys General Edwin Meese III and Michael Mukasey, among others, is that Smith's nomination as special counsel violates the Appointments Clause of the Constitution, which says that “officials of the United States” must be nominated by the president and confirmed by the Senate. But the Appointments Clause allows Congress to give the “head of an agency or department,” in this case the attorney general, the power to appoint “inferior officials.”
“The Appointments Clause does not permit the Attorney General to appoint private citizens or like-minded political allies to exercise prosecutorial power over the United States without Senate confirmation,” they wrote. “Accordingly, Jack Smith does not have the authority to prosecute this case.”
Smith “wields extraordinary power yet is accountable to virtually no one,” the brief filed on behalf of Meese and Mukasey said. “He has no more authority to represent the United States before this Court than Tom Brady, Lionel Messi or Kanye West.”
Although it is true that the Supreme Court has broadened the scope of the Appointments Clause in recent years, the anti-Smith argument still faces three problems: textual, historical, and precedent.
First, the law gives the Attorney General the authority to make such appointments. For example, 28 USC §533 authorizes the Attorney General to “appoint officials to investigate and prosecute crimes against the United States.” Similarly, 28 USC §515 provides that “any attorney specially appointed by the Attorney General under law may, when specifically directed by the Attorney General, conduct any type of civil or criminal action that an attorney for the United States is authorized by law to conduct.”
By the way, special counsel rules mean Smith must follow Justice Department rules and can be overruled or removed for cause by the attorney general.
Second, special counsels have been appointed for decades, from Archibald Cox in Watergate to Robert S. Mueller III in the Trump investigation.
Third, the courts have already considered and rejected several constitutional challenges to special counsel. The Supreme Court briefly addressed the issue in 1974 in United States v. Nixon, Watergate, upholding the Attorney General's authority under Section 533 and other statutes to delegate powers to a special counsel.
In 1987, the U.S. Court of Appeals for the District of Columbia Circuit dismissed a challenge to the authority of Iran-Contra independent counsel Lawrence E. Walsh, citing constitutional questions about the now-expired Independent Counsel Act based on Department of Justice regulations. “We have no difficulty in concluding that the Attorney General had the legal authority to establish the Office of the Independent Counsel in the Iran-Contra case and to delegate to it the 'investigative and prosecutorial functions and powers' set forth in the regulations,” the court said.
And in 2019, the D.C. Circuit cited those cases to dismiss a challenge to Mueller's appointment for the same reasons argued by Trump's lawyers in Cannon: “Because binding case law has established that Congress has 'by statute' given the Attorney General the authority to appoint a special counsel as a subordinate official, this Court need not further identify the specific basis for this authority,” the court said.
But now it's time: Cannon will debate the Appointments Clause issue on Friday and the more biased office funding issue on Monday, but either way, it won't jeopardize his ability to prosecute cases. (A 1987 law created a continuing budget to pay for all costs of investigations and prosecutions by independent counsel appointed under Supreme Court rules.) [the now-lapsed independent-counsel statute] or any other law.
All of this is with Cannon. She appears to have been planting her flag on the Trump campaign even before the Trump indictment reached her court. After the FBI searched Mar-a-Lago for classified documents, Cannon granted Trump's motion to appoint a special master to review the seized materials, but the 11th Circuit Court of Appeals rejected her.
She has dithered on key decisions, expressed frustration with the prosecution and leaned toward rulings in Trump's favor. The case was originally scheduled to go to trial in May but has since been postponed indefinitely.
In addition to challenging Smith, she is now considering whether to respond to attempts by Trump's lawyers to dig into internal government discussions about the classified documents case. The lawyers argue that the special counsel “is ignoring basic discovery obligations and Department of Justice policy, and is aiding the Biden Administration's egregious efforts to weaponize the criminal justice system with the goal that President Biden cannot achieve through his campaign: slowing President Trump's ascendancy in the 2024 presidential election.” After her arguments with Smith, she is scheduled for a three-day hearing on the issue.
This judge, unfortunately, is a real thug.
