U.S. District Judge Aileen Cannon has much more free time on her hands now. Last week, her calendar was packed with hearings and pending motions in former President Donald Trump’s federal classified documents case. But on Monday she issued a sweeping ruling dismissing the case and finding that special counsel Jack Smith was unconstitutionally appointed in the process.
The 93-page ruling puts an end — for now — to what had once been seen as the strongest case against Trump. It also cleans up — again, for now — the mess that Cannon had made for herself in her halting, hesitant and ultimately horrific handling of the case. But in issuing this ruling, Cannon has created an even larger problem for Smith and the judges who will have to contend with her reasoning in future appeals. That process is sure to be lengthy, because the scope of Cannon’s ruling would essentially negate both federal cases against Trump in their entirety.
Cannon’s decision to grant a motion to dismiss was a surprise, one of many she has pulled out over the 13 months since she was assigned the case.
Cannon’s decision to grant a motion to dismiss was a surprise, one of many she has pulled out over the 13 months since she was assigned the case. The hearing at which the motion was argued before her last month was viewed as odd from the moment it was announced, though it was another in a long line of delays that Cannon had already caused by giving undue credulity to whatever claims were tossed her way. The resulting backlog of motions requiring judgment had meant that even before Monday, no trial date had been set, even though proceedings were initially scheduled to begin in May.
Last month’s hearing was particularly strange, however, because Cannon allowed arguments from outside parties beyond Trump’s lawyers and Smith’s prosecutors. The pro-Trump argument boiled down to an attack on special prosecutors broadly, albeit targeting Smith specifically. It claimed that the Department of Justice’s special counsel regulations, under which Attorney General Merrick Garland appointed Smith, violated the Constitution. The pro-Trump lawyers argued that the independence vested in Smith’s position made him a “principal officer,” thus requiring Senate confirmation under the Constitution’s Appointments Clause. They further argued that Smith’s office was improperly drawing on Justice Department appropriations without Congress’ specifically authorizing that spending, violating the Appropriations Clause.
In fairness, the special counsel regulations have always a bit awkward. They were drafted to replace Congress’ independent counsel statute, which was passed post-Watergate but allowed to expire in 1999. By then both parties had agreed that, despite the Supreme Court’s upholding the law authorizing the independent counsel in 1988, the post was too unwieldy to be functional. Politicians sought a replacement that still allowed for autonomy without becoming an unaccountable fourth branch of government. The Justice Department lawyers who authored the rules drew on various statutes to grant the attorney general the power to appoint a special counsel who “shall be selected from outside the United States Government” for cases in which a typical U.S. attorney would “present a conflict of interest for the Department or other extraordinary circumstances.”
The resulting regulations have been invoked in both Democratic and Republican administrations with little to indicate that they might be unconstitutional. A court challenge against special counsel Patrick Fitzgerald, named by then-President George W. Bush to investigate the Valerie Plame leak, that made similar Appointment Clause arguments was rejected by a district court judge in 2006. Special counsel Robert Mueller, named to oversee the Russia investigation during the Trump administration, was also given a green light in 2019 when the U.S. Court of Appeals for the District of Columbia Circuit deemed his appointment was likewise constitutional.
It is frustratingly fitting that this would be the way that Cannon finally answers the calls from observers to act swiftly.
Cannon dismissed those prior rulings in her decision, along with Smith’s arguments that his role is as an “inferior officer” who is accountable to the attorney general. Instead, she sided with a concurring opinion from Justice Clarence Thomas in the Supreme Court’s decision that granted Trump broad immunity in the federal case relating to his alleged 2020 election interference. (She also ruled against Smith on the Appropriations Clause challenge, but since the Appointments Clause decision was enough to dismiss the case did not go as in-depth in her analysis.)
Canon’s ruling also cuts off the chance that a newly named special counsel, one who is already a Senate-confirmed U.S. attorney, could simply pick up where Smith left off. Instead, under her ruling Smith’s investigation would now be invalidated, as he was never legally authorized to conduct it. And while the ruling doesn’t directly affect the election interference case in Washington, as it is not binding on the judge overseeing it, it provides a new method to stall those proceedings even further once they’re finally resumed. Given that courts have seen no issue with special counsel appointments in the past, it’s uncertain whether a more experienced judge would have ruled the same way as Cannon. Her short time on the bench has been a major reason for the delays in the case, as her meticulous approach has led to packing her schedule with motions many jurists would dismiss as dilatory or rule on swiftly without a hearing. The New York Times even reported last month that several more experienced judges in Cannon’s district suggested that she hand off the case when it was initially assigned to her at random. She declined, despite her lack of trial experience, leading us to Monday’s dismissal. It’s unclear whether this ruling will stand up in the face of scrutiny at the appellate level. The 11th U.S. Circuit Court of Appeals struck down a decision of hers early in Smith’s investigation with an unusual degree of scorn for her legal reasoning. There’s still a chance that her decision is reversed, but it’s likely she’d remain on the case. This would place her right back in the same spot as before, with a lengthy list of motions to consider before a trial date could be set and a jury could be impaneled. At the same time, it is frustratingly fitting that this would be the way that Cannon finally answers the calls from observers to act swiftly. In fact, it feels almost petty that she would grab at this off-ramp when it was presented to her after stubbornly refusing to admit that she’s in over her head. Rather than act decisively on issues that would clearly fail under scrutiny, she has instead in one fell swoop taken the most promising chance presented to her to wash her hands of the matter altogether.
Hayes Brown is a writer and editor for MS NOW Daily. 
