Federal Judge’s Dismissal of Trump Classified Documents Case Appears to Be on Solid Constitutional Ground
Cully Stimson / John G. Malcolm /
In a major setback for President Joe Biden’s Justice Department, the federal judge overseeing the criminal case brought by special counsel Jack Smith against former President Donald Trump for willful and unlawful retention of national defense information under the Espionage Act and for obstruction of justice threw out the superseding indictment and dismissed all of the 42 charges against Trump and two other defendants.
U.S. District Court Judge Aileen Cannon granted Trump’s motion to dismiss the case, concluding that Smith’s appointment as a special counsel violated the Appointments Clause, and that the funds his office has spent to pursue Trump violated the Appropriations Clause of the U.S. Constitution, which forbids the expenditure of federal monies without an express appropriation by Congress.
The Justice Department now must decide whether to appeal the decision to the U.S. Court of Appeals for the 11th Circuit or, as it tried to do with the D.C. case when Trump argued that he was immune from prosecution for actions undertaken as president, it might try to bypass the 11th Circuit and seek an immediate review by the Supreme Court. Either way, an appeal is likely.
The Appointments Clause
The backbone of Cannon’s 93-page opinion is the concept of—and historical underpinnings of—separation of powers principles.
Early on in her opinion, Cannon wrote:
The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening structural liberty inherent in the separation of powers.
At the outset, she makes clear that if Congress wanted to grant the attorney general the power to appoint a special counsel, “there is a valid means to do so.”
“He can be appointed and confirmed through the default method prescribed in the Appointment Clause,” which requires nomination by a president and confirmation by the Senate.
Cannon also noted that Attorney General Merrick Garland could have tasked any of the 93 current U.S. attorneys with handling the Trump classified documents case without violating the Appointments Clause since they were all confirmed by the Senate after having been nominated by Biden.
But instead, Cannon dryly noted, Garland selected a “private citizen” who was given the “full power of a United States Attorney, and with very little oversight or supervision.”
Cannon concluded that Smith’s appointment definitively violated the Appointments Clause in one way, and likely violated it in a second way. This argument had previously been rejected by the D.C. Circuit Court of Appeals in a case challenging the appointment of Robert Mueller as special counsel, but that opinion is not binding on Cannon, who went to great pains to explain why she thinks that opinion was wrongly decided.
The Appointments Clause (Article II, §2, Clause 2) provides, in pertinent part that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The key to Cannon’s ruling are in the words “established by Law.” While there used to be a law—albeit a controversial one—that expressly authorized the appointment of independent counsels, that law expired in 1999 and was not renewed.
Congress, Cannon concluded, has not passed any law creating an Office of Special Counsel, and therefore any such appointment was not to an office that has been “established by Law,” nor has Congress “by Law” vested the attorney general with authority to appoint a special counsel.
Therefore, she concluded, because Congress has not established an Office of Special Counsel “by Law,” Smith’s appointment violated the Appointments Clause.
In the recent presidential immunity case, Supreme Court Justice Clarence Thomas in a concurring opinion also raised this issue. He noted that the appointment of special prosecutors vested with almost unlimited authority and without any input from the legislature was one of the grievances cited against King George III in the Declaration of Independence—“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance”—and is the reason why the Constitution’s Appointments Clause was crafted to give Congress a role in the appointment of special prosecutors.
Cannon outlined a second reason why she thinks Smith’s appointment likely violated the Appointments Clause, although she acknowledged that this was a closer question.
In an amicus curiae (“friend of the court”) brief filed by two former attorneys general, Edwin Meese and Michael Mukasey, and others, they argued that Smith is a principal officer, citing his virtually unlimited power to pursue Trump, limitations on how he could be removed, and the fact that Smith’s actions were not subject to any meaningful supervision by the attorney general.
As such, they argue, Smith would have to be nominated by the president and confirmed by the Senate.
Neither happened with respect to Smith. Prior to his appointment to serve as special counsel on Nov. 18, 2022, Smith was a private attorney and a former, not a current, DOJ lawyer.
And regarding Garland’s supervision of Smith’s activities, Cannon noted that the special counsel regulations issued by the Justice Department “impose virtually no mechanism for supervision or control by the Attorney General.”
She found that the special counsel was under no obligation to consult with the attorney general about the conduct of his duties or responsibilities; that he merely needed to “consult” with appropriate officers within the Justice Department, but he alone gets to decide whether to consult with the attorney general; and is required to “notify” the attorney general of events in the course of his investigation, yet nothing in the rules gives the attorney general the authority to “countermand, direct, or supervise those significant decisions.”
In the appointment order, Garland claimed he was “vested” with appointment authority pursuant to four sections of a federal statute, namely, 28 U.S.C. §§ 509, 510, 515, and 533.
That order directed Smith to conduct two specified investigations and prosecute federal crimes arising from: (1) “efforts to interfere with the lawful transfer of power following the 2020 presidential election” and (2) willful retention of national defense information at Trump’s Mar-a-Lago residence in Florida.
Cannon’s decision related only to the latter case, but could influence the former case being litigated in the U.S. District Court for the District of Columbia.
The bulk of Cannon’s opinion involved a painstaking review of each of the authorities relied upon by the Justice Department for the appointment.
Cannon concluded that, when considered in context, none of those authorities supports the delegation of such vast power in a special counsel.
Quoting from an opinion by the late Supreme Court Justice Antonin Scalia, Cannon stated that Congress “does not … hide elephants in mouseholes.” Smith’s arguments, she continued, were unsupported by the text of the applicable laws, “were inconsistent with Congress’s usual legislative practices,” and would threaten “to undermine the basic separation-of-powers principles that give life and content to the Appointments Clause.”
Appropriation Clause
In the last part of her opinion, Cannon held that the funding mechanism for Smith’s investigation against Trump likely violated the Appropriation Clause, which provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
The parties agreed that Smith’s office has been funded since its inception using a “permanent indefinite appropriation … established within the Department of Justice to pay all necessary expenses.” Here, however, the law provides that indefinite appropriations are available only to an “independent counsel” appointed pursuant to the now-expired Independent Counsel Act “or other law.”
Having already determined that no such law exists, Cannon concluded that Smith has “unlawfully” drawn “tens of millions of dollars” to pursue Trump since his appointment in violation of the Appropriations Clause.
Why This Is Important
Near the end of her opinion, Cannon stated:
The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether in this case or in another case, whether in times of heightened national need or not.
In the case of inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel’s strained statutory readings. Nor does his appeal to inconsistent “historical practice” supplant the absence of textual authorization for his appointment. The same structural emphases resonate in the context of the Appropriation Clause, which “embodies a fundamental separation of powers principle—subjugating the executive branch to the legislatures power of the purse.”
Although liberals and Never-Trumpers will, as they have in the past, be quick to label Cannon as a “legal laughingstock” and a “hack,” this is a grossly unfair characterization. Cannon’s opinion is a serious and thorough analysis of important constitutional issues pertaining to the Constitution’s Appointments Clause and Appropriations Clause.
Her opinion should be judged on its merits, not on whether someone likes or dislikes the outcome of this particular case.
As Scalia once noted, without robust and enforceable separation of powers, the remaining provisions of the Constitution would just be “parchment guarantees.” While it’s perhaps unfortunate that these issues have arisen within the context of such a politically charged case, those issues involve separation of powers between the executive and legislative branches, which serve as a bulwark to protect all of our civil liberties.
Yes, even those of Donald Trump.