Newsweek: Judge Cannon Lets Trump Squirm Off the Hook in Documents Case
Newsweek
Judge Cannon Lets Trump Squirm Off the Hook in Documents Case
Thomas Moukawsher
Published Jul 16, 2024 at 10:20 AM EDT
Like a get-well card from an old friend, Judge Aileen Cannon‘s ruling dismissing the secret documents case couldn’t have come at a more opportune moment for Donald Trump. Not only is the former president recovering from his wound following an attempted assassination, but the ruling oddly arrived on the very day the Republican National Convention convenes in Milwaukee. Trump’s coronation at the convention is now likely to approach a deification.
Still, the delegates shouldn’t celebrate themselves into a stupor just yet. Cannon’s ruling is far from the end of that case and begs to be overruled.
Cannon’s ruling seizes on the latest in a series of substance-less assaults Trump has made on every case brought against him. So far, she has been the only judge foolish enough to buy one of them.
Trump challenged the hiring of special counsel Jack Smith as violating the Appointments Clause of the Constitution. According to Trump, without a specific statute authorizing Smith’s appointment as an outside “special counsel,” the Justice Department had no legal way to employ him. Specifically, heads of departments like the Justice Department are authorized by the Constitution to appoint “inferior officers” of the government like Smith, but—so goes the argument—this appointment is too significant to fall under any general power the attorney general may have to appoint others to assist in carrying out the duties of the Justice Department.
In swallowing this view, Cannon has relied on a subjective opinion that this job is too important to appoint under the authority invoked by the Attorney General. Cannon emphasized that the law allowing special counsel to be appointed says they must be specially appointed “under law.” This means to her, in this case, that a special law is required.
Nonsense. A specific additional law does give the attorney general the power to “appoint officials to detect and prosecute crimes against the United States.” So, what more is needed? For Cannon, a lot.
First, the judge relies on ritualistic twisting and turning around word meaning. What is an “official?” Cannon agrees that sometimes an official means someone chosen from outside an organization as well as from within. But, of course, not in this case. In this very special case, in Cannon’s opinion, officials don’t include outsiders because other lower-level people like FBI agents can be appointed under the authority Smith cites. How could a post so powerful consort with the lowly likes of mere FBI security and investigative employees? And for the same reason we can’t take the word “prosecute” to mean prosecute. It has to mean help prosecute.
If judges are just supposed to look at the words of a law and do what they say, Cannon’s castration-by-association approach is pretty weak. It means the association of the special prosecutor words with other provisions about the FBI mean the words don’t mean what they say. So much for textualism.
Cannon’s constitutional concerns are equally in error. She is concerned with the separation of powers between the executive and legislative branches. High-level federal prosecutors who, in her view, “most resemble” Special Counsel Smith—United States attorneys—must be nominated by the president and confirmed by the Senate, so Cannon believes that, having never been bef0re the Senate, Smith cannot serve as a special counsel consistent with the Constitution’s Appointments Clause.
Cannon was indeed so concerned about this that she chose to ignore the case of United States v. Nixon in which the Supreme Court said the exact opposite of what she said. In Nixon’s case, the high court said that Congress authorized the attorney general to appoint others to represent the United States, including in that case, a special prosecutor. The Nixon precedent didn’t matter, Cannon said, because this plain assertion of power was mere “dicta,” a statement of the law that can be disregarded because it wasn’t crucial to deciding the issue in front of the court.
Cannon’s dismissal of the secret documents charges is girded chiefly by her subjective opinions and her rejection of Supreme Court precedent. It is also fringed with bitter irony. What brought the case down was the attorney general’s attempt to appoint an outside counsel to avoid the appearance of a partisan prosecution. Special counsels have been used this way for years, including during the Trump administration. The only greater irony now would be if the Supreme Court agrees with Cannon and injects greater partisanship in the prosecution of politically sensitive cases. Here’s hoping it doesn’t.
