Special counsels are unconstitutional if they make Trump sad
Or so says Aileen Cannon.
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It finally happened.
Judge Aileen Cannon, who has been telegraphing for months that she was committed to finding a way to get Trump off the hook in his classified documents case, came through for her guy. In a sprawling 93-page opinion, Cannon threw out the charges against the former president, agreeing with Trump that Special Counsel Jack Smith’s appointment was unconstitutional.
Since Trump stuffed the federal judiciary full of Federalist Society true believers, those courts are nothing but Calvinball. There are no longer any fixed rules and precedent doesn’t matter. What does matter to judges like Cannon is ensuring that a hard-right evangelical worldview becomes the rule of law in America and that Donald Trump is preserved at all costs.
Cannon’s opinion is a joke
There’s little to no legal support for Cannon’s decision.
In short, her ruling turns on the assertion that a special counsel is a “principal,” not an “inferior” officer. The former are appointed by the president and confirmed by the Senate — basically the same as cabinet appointments. Inferior officers generally have the same confirmation requirements unless Congress has authorized a head of a cabinet department to make the appointment. In that instance, Senate confirmation isn’t necessary.
The notion that the head of the Department of Justice can appoint special counsels as needed has been settled since the Watergate era. Indeed, if Senate confirmation were always required, special counsel appointments would become nearly impossible, as the Senate is basically non-functional thanks to the filibuster. Additionally, under Cannon’s view, if the Senate is held by the party in opposition to the current occupant of the White House, they essentially get a veto over every special counsel nomination.
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The argument that special counsel appointments are unconstitutional if it makes Republicans sad has been pushed by conservative litigants who wanted to block Robert Mueller from investigating Russian interference in the 2016 election. As Quinta Jurecic noted at Lawfare, when the DC Circuit issued its appellate opinion in 2019, four other federal courts had already considered the matter, agreeing that the special counsel’s appointment was proper.
The architect of this anti-special counsel argument is Stephen Calebresi, one of the founders of the Federalist Society. Calebresi has shopped it around quite a bit, with major law review articles in 2018 and 2019 arguing Mueller’s appointment was improper and an amicus brief to the Supreme Court in Trump’s presidential immunity case.
Recall that Cannon’s decision to entertain the Trump appointments clause argument led to an extremely odd hearing where Cannon allowed amici — outside third parties like Calebresi — to present arguments in favor of Trump’s position. That’s a highly unusual step and telegraphed either that Cannon didn’t know what she was doing, was deliberately to bolster her inevitable decision in favor of Trump, or both.
You might wonder how Cannon got around the fact that a signature event in American history — Watergate, the last time a Republican president got caught doing massive crimes — involved the Supreme Court accepting the appointment of Leon Jaworski. The comparison of Smith to Jaworski is especially apt, as Jaworski, like Smith, was appointed while they were private citizens working outside the government.
Well, Cannon gets around it by declaring that the Supreme Court didn’t really mean what it said in the Watergate tapes case. There, the Supreme Court wrote that “Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.”
That is a clear statement that the attorney general can appoint subordinate — aka inferior — officers, just like Jack Smith. But Cannon dismisses this as “dicta” — a Latin term meaning that part of the ruling is something said in passing and not binding on future courts.
Cannon’s position would make more sense if there weren’t several other cases that relied on this holding from the Watergate case to affirm the appointment of various special counsels. So she has singlehandedly upended decades of law about appointments of special counsels by casting one of the central holdings of the Nixon tapes case as nothing but a throwaway remark by the Supreme Court in 1974.
Not content to deal with the case at hand, Cannon also decided she should go back to the 1980s and retroactively declare that the appointment of Lawrence Walsh, who investigated the Reagan Administration’s role in the Iran-Contra affair, was invalid. So, too, with Robert Mueller’s appointment as special counsel examining Russian interference in the 2016 election. The constitutionality of Mueller’s appointment had already been addressed by a federal appellate court five years ago when the DC Circuit Court of Appeals upheld Mueller’s appointment. However, yesterday’s opinion is very clearly Cannon’s job interview with Trump, and she’s writing this for an audience of precisely on person, so why not throw Trump some red meat about Mueller as well?
Having disposed of decades of special counsel law, Cannon wasn’t left with much in the way of precedent. Perhaps that’s why she had to lean hard on Justice Clarence Thomas’s concurrence in the presidential immunity case to reach her preferred conclusion.
Yes, his concurrence. It does not take the sophisticated mind of a federal judge to understand that concurrences do not have the force of law. But why should Cannon care? No matter how poor the reasoning in this opinion, any appeal by the government will eventually run into the conservative Supreme Court majority. Those six individuals already declared Trump a king, so it certainly wouldn’t be any big deal to undermine the use of the special counsel if it helps him elsewhere.
Thomas’s concurrence was unusual even by the standards of this current Supreme Court in that it isn’t a concurrence to the central issue of the case, which was whether Trump had presidential immunity to charges in the J6 case. Rather, Thomas addressed the Appointments Clause issue for no good reason save to attack the special counsel role. Cannon cites him approvingly in her opinion.
Heads, Trump wins. Tails, we all lose.
Like many Supreme Court cases in recent years, the key to reading Cannon’s opinion is to refuse to engage with it as a piece of serious legal analysis.
Instead, it should be read as what it is: an expression of pure power, the kind that knows there’s no consequence for its misuse. That’s why Cannon can breezily dispose of decades of precedent about special counsel appointments: Who’s going to stop her?
And if, down the line, Trump or a future GOP president sees a need for special counsels? The beauty of Calvinball is that whatever rationale led to Cannon’s decision here can be neatly disposed of when necessary. Given Trump’s brand new vice president pick, JD Vance, has joined in Trump’s call for a special prosecutor to investigate President Biden, we may see this round of Calvinball sooner rather than later if Trump wins.
Special counsel Jack Smith has already indicated that the DOJ will be appealing the dismissal to the Eleventh Circuit Court of Appeals. Recall that the Eleventh Circuit overturned Cannon's previous ruling in this matter. Cannon granted Trump’s request that a special master review all the classified material Trump absconded with, which dragged the case to a halt. The Eleventh Circuit was not happy with this, saying, “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”
And this is the core of the problem: People like Aileen Cannon are perfectly happy with a rule that only applies to Donald Trump. Indeed, Cannon’s order already states that “the effect of this Order is confined to this proceeding.” Those of us who lived through the 2000 Bush-Gore recount case will recall that the Supreme Court tried to create a similar firewall between their bad and self-serving ruling and the possibility it might ever be used against Republicans instead of just Democrats. In Bush v. Gore, when handing the presidency to George W. Bush, the Court wrote that “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
See? Calvinball. The giveaway of the presidency to George W. Bush only applies to George W. Bush. The destruction of the special counsel process only applies to Donald Trump. If Republicans need either of these issues to go the other way in a court of law, they just have to point to Cannon’s language limiting it to this instance only.
Cannon’s timing, whether a product of her overall incompetence or a deliberate choice, is exceedingly favorable for Trump. Even if Smith prevails in the Eleventh Circuit, Trump could petition his pet Supreme Court justices to review the case. No matter what, the case is DOA before the election. The process of an appeal, the result of which would ultimately only be to send the case back down for trial, will drag long past the election.
If Trump wins in November, the case will just disappear. If Trump doesn’t win in November, right-wingers still have a stranglehold on the federal courts and can make the case go away on whatever rationale they feel like. Heads, Trump wins. Tails, we all lose.
That’s it for today
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Thanks for reading.
So.. how do you explain this to the voting public? The justice system up to the Supreme Court has already been undermined, gamed. ... as the vote itself has been the focus of a long project to game it in favor of the extreme TrumpMAGAproject 2025. The GOP has been taken over. The Democrats play by the rules depending on a system that is corrupted across.
This representative constitutional democracy does not have to work because it has worked. Playing by the rules, the justice system built respect for precedents, precedents build up over years. This has meaning. This is how we built this country from its beginning to today using the justice system and the law passed in Congress and by the Executive.
The Congress is blocked from making laws that we need. And now we are teeter-tottering towards the horror of an Executive that has immunity for its actions essentially that would be run by an insurrectionist and his novice ideologue.
The idea of this country was that the people can govern themselves and for all in it. This is an experiment. Time and again we have come through. This time we really must. We need both houses of Congress and the Presidency.
I had totally forgot Calvinball. It is the perfect metaphor. And not just for this, but for the alternative universe that the rethuglican party lives. Calvinball applies to the choice of J. D. Vance as the VP pick. He hates TFG, until he doesn’t.