For the first time in U.S. history, a federal judge today found the appointment of a special prosecutor to be unconstitutional in a decision dismissing one of former President Donald Trump’s most serious criminal cases — and potentially shaking the foundations of a long-accepted practice.
U.S. District Judge Aileen Cannon found that Attorney General Merrick Garland had no power to appoint Jack Smith as a special counsel investigating Trump’s alleged crimes.
Although authorization to appeal the ruling has already been announced, for now, the stunning order closes the book on Trump’s prosecution for retaining classified documents after he left the White House. It also sets the stage for another seemingly inevitable constitutional battle on the heels of a long-awaited immunity decision.
It was a decision weighty enough for Smith’s spokesman Peter Carr, long known for his tight-lipped silence and aversion to grand public pronouncement, to release a scathing statement criticizing Cannon for departing from all federal judges before her.
“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,” Carr wrote in an email. “The Justice Department has authorized the Special Counsel to appeal the court’s order.”
Carr did not explicitly signal whether Smith would pursue that appeal, when prosecutors would file one, or where they would file it. Until an appellate court weighs in, Cannon made clear that her order does not affect special counsel appointments in any other case.
A Historical Departure
Inside a small federal courtroom in south Florida in late June, prosecutor James Pearce painted a sweeping history of the role that special prosecutors — a phrase often used interchangeably with the more formal and contemporary “special counsel” — have played in the United States.
Since President Ulysses S. Grant appointed the first one roughly 150 years ago, special counsels became a recurring feature that popped up after various U.S. scandals, from the Whiskey Ring to the Teapot Dome to Watergate. The Supreme Court first authorized a special prosecutor’s investigation during the Nixon tapes decision, and during the intervening decades, eight separate judges have endorsed the practice of attorneys general appointing special prosecutors, unanimously rejecting the constitutional concerns of numerous criminal defendants.
The prosecution’s tacit message to Cannon in recounting this history last month could not have been clearer: Do not become the first to find otherwise.
On Monday, Cannon disregarded that admonition, finding that Smith’s appointment violated the Appointments Clause of the Constitution and dismissing Trump’s case in a 93-page ruling.
The Constitution requires the president to obtain the Senate’s “advice and consent” to appoint “officers,” but it carves out an exception for “heads of departments” to appoint “inferior officers” where Congress has authorized such appointment.
For decades, every court that considered the issue defined special prosecutors as “inferior officers,” and found that Congress approved such authority through the relevant statutes then in effect. Cannon found that statutes on which the Department of Justice has relied since the prior statutory scheme expired in 1999 do not authorize Smith’s appointment, even assuming he is an “inferior officer.” She further wrote that “compelling reasons” existed to find that Smith was a “principal” officer, in which case his appointment would be clearly unconstitutional under the Appointments Clause, but, after lengthy discussion, ultimately declined to reach the question.
Other criminal defendants — like Trump’s former campaign manager, Paul Manafort; Roger Stone’s associate, Andrew Miller; and Concord Management, the Russian troll farm — unsuccessfully tried to challenge the legality of special prosecutors appointed by the Attorney General, but those cluster of cases were mostly decided in the D.C. Circuit, rather than the 11th Circuit, where Cannon’s court is located, meaning that while the out-of-circuit decisions may provide persuasive authority, they are not binding in Florida.
Supreme Court Signals
In order to reach her decision, Cannon had to first distinguish existing Supreme Court precedent.
In 1974, the Supreme Court unanimously signed off on a special prosecutor’s authority in ordering then-president Richard Nixon to turn over subpoenaed tapes. Since Nixon did not dispute the special prosecutor’s authority, Cannon described that holding as “dictum,” or legal reasoning that is not essential to the outcome of a case and not binding on her court.
“Across hundreds of pages of briefing (and hours of oral argument) in Nixon, neither party challenged the Special Prosecutor’s validity or the Attorney General’s appointment authority,” Cannon wrote in her ruling. “In fact, on numerous occasions, President Nixon expressly stated that he did not contest these points.”
Roughly a decade and a half later, the Supreme Court provided further validation to the concept of special prosecutors in a separate decision: Morrison v. Olson, which upheld a now-expired Watergate-era anti-corruption law called the Independent Counsel Act. In a long line of cases, prosecutors cited that 1988 decision in support of the proposition that special counsels did not violate the separation of powers, but Cannon rejected the argument that the precedent applied because the statute it upheld had lapsed. Garland cited four other statutes to justify Smith’s appointment, but Cannon repudiated the applicability of them all.
Trump and his allies have long disputed the authority of special prosecutors — until now, to no avail. Special Counsel Robert Mueller successfully fended off attacks on his prosecutorial authority by Manafort, Miller, and Russian bot farm Concord Management. Though Manafort’s trial judge accepted the limited reach of the Nixon precedent, the D.C. Circuit emphatically found the Supreme Court’s Nixon and Morrison decisions were binding when Miller challenged Mueller’s appointment in the case in re Grand Jury Investigation. Cannon hand-waved that out-of-circuit precedent as relying on “presuppositions” that she rejected.
For Cannon, the more useful view from the Supreme Court came from Justice Clarence Thomas, who went out of his way to opine on the Appointments Clause issue in a concurring opinion of Trump’s immunity case. Smith’s constitutional authority was not an issue before Thomas at that time, and the Court did not rule on it. No other justice expressed an opinion on the matter, but Thomas wrote separately to express his opposition to the constitutionality of Smith’s appointment.
Cannon took notice, citing Thomas’ concurring opinion no fewer than three times.
What’s Next for Jack Smith?
In a phone interview, attorney Matthew Seligman, who argued before Cannon on behalf of constitutional law professors opposing Trump in June, predicted a prompt appeal, calling the decision “unmoored from precedent and from the text of the statutes that she claims she’s interpreting.”
Long before Cannon’s latest ruling, some legal analysts questioned whether prosecutors may try to have the case reassigned over a perceived pattern of pro-Trump bias.
After the FBI’s search of Mar-a-Lago, the 11th Circuit reversed Cannon’s decision to block prosecutors from using certain evidence for their active investigation under a special master review of the seized files based on assertions of attorney-client privilege and executive privilege. Two of the judges who unanimously reversed her were also Trump appointees, and according to an extraordinary report in the New York Times, the chief judge of the Southern District of Florida — where Cannon sits — unsuccessfully urged her not to take up Trump’s criminal case. Cannon refused, and she frequently frustrated prosecutors — through her actions and inactions — on everything from scheduling matters to sealing procedures to proposed jury instructions. She granted extensive arguments to every defense motion, slow-walking the case to such an extent that she had nine fully-briefed motions remaining on her docket at the time she dismissed Trump’s case, according to The Guardian.
However, Cannon’s rulings since Trump’s indictment in the documents case left little room to hand prosecutors an appealable issue and seek her removal — until now.
“Prior to this decision, I thought it was unlikely that he would do so,” Seligman said, referring to the odds that Smith would seek to remove Cannon from the case during an 11th Circuit appeal. “He’s decided, presumably as a strategic matter, that that was not warranted yet, and I think that this decision may change that calculus.”
Attorney Josh Blackman, who argued in support of Trump’s challenge to the special prosecutor, praised what he described as Cannon’s “serious, thoughtful, careful opinion” in a phone interview.
Appellate Risks and Rewards
Smith can appeal the dismissal back to the 11th Circuit, where his team prevailed before Trump was indicted, or he can try to leapfrog the appeal directly to the Supreme Court, which prosecutors unsuccessfully tried to do to expedite Trump’s immunity appeal in his case alleging interference in the 2020 presidential election. In the immunity case, the Supreme Court waited for the D.C. Circuit to weigh in before taking up the case, and handing Trump a sweeping victory on the last day of their term.
If affirmed on appeal, the logic of Cannon’s ruling arguably could leave other Justice Department officials vulnerable, such as the Justice Department’s lead attorney handling Supreme Court arguments (the principal deputy solicitor general) and those that help supervise the agency’s various divisions (known as deputy assistant attorneys general).
“This decision, if it’s allowed to stand, would call into question the lawfulness of something like a dozen or more very important officials within the Department of Justice, and so I think that there’s a very strong institutional interest in having this decision reversed on the merits,” Seligman, a fellow at the Constitutional Law Center at Stanford Law School, said.
U.S. District Judge Tanya Chutkan, who is presiding over Trump’s election interference case, is not bound by Cannon’s ruling, but she is bound by the D.C. Circuit precedent contradicting it. Should Trump press his challenge of Smith’s appointment in Chutkan’s court, there would be no place left to go but the Supreme Court.
Especially in the wake of the Supreme Court’s immunity decision, any order affirming Cannon’s ruling would make criminal accountability for former presidents all the more elusive.
“If this ruling stands, it will become very hard to appoint quasi-independent special counsels to investigate an incumbent administration,” Blackman, who argued in Trump’s support, noted in a phone interview.
“If you combine Trump v. United States on immunity with this decision, you have a one-two punch where current presidents have this immunity, and now, you can’t really appoint an independent counsel,” he added. “This will make it very hard to try to use the criminal justice system to even investigate a current president, if you can’t indict him.”