In June 2023, the Federal Department of Justice indicted Donald Trump on 40 counts of mishandling classified documents at his mar-a-lago residence. The case was filed by Special Counsel Jack Smith in the Southern District of Florida, and assigned to District Judge Aileen Cannon, who Former President Trump appointed in his final days in office. Out of the array of legal challenges faced by the Former President, this case was seen as the “strongest and most straightforward” against him.
Yet in a decision that stunned legal experts, Judge Cannon dismissed the case in an unprecedented ruling, in which Judge Cannon ruled that the Special Counsel system that has been used for decades is unconstitutional.
This ruling hardly surprised me. Throughout the case, Judge Cannon has consistently made decisions that go against typical legal principles and practice, giving legitimacy to once far-fetched legal theories.
While I knew her rulings were unprecedented and unusual, I wanted to see for myself what Judge Cannon had to say, so I have spent hours (hours I wish I could have back) reading through Cannon’s 93-page bewildering dismissal of the case. From this, I took away a few things about how Cannon operates, and also where she missed the mark.
I am certainly no legal expert, nor do I claim to be. In fact, to the contrary, I am a High School Student without any formal Legal education. However, even to a 15-year-old who has minimal knowledge of the law, I found the Judge’s ruling to be wildly ignorant and out of touch.
In the ruling, Judge Cannon dismisses the case under the Constitutions appointments clause, which says that the President must appoint “principal officers” (cabinet secretaries, Supreme Court Justices, ambassadors, and judges) with approval from the Senate and that Congress may vest the appointment of “inferior officers” (as defined in Edmond (1997), as someone “whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate”). Cannon ruled that because Special Counsel Jack Smith (the prosecutor in the case) was not vested by Congress the case was entirely invalid.
To come to this ruling, Cannon ignores Supreme Court Precedent, previous Circuit Court precedent, history, and United States statutes that all seem to clearly suggest that the appointment of a special counsel is perfectly legal.
For one, 28 U.S. Code § 515 (b) reads
Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.
You may ask how Judge Cannon squares this statute with her ruling. Well, that is a good question. Cannon addresses this on Page 26 of her ruling, arguing that the “special attorney” mentioned in the code is not a reference to Special Counsels like Jack Smith. Instead, she argues, it is a reference to lawyers who are tasked by the Attorney General to assist United States Attorneys. Judge Cannon then plays word games with 2 words, “retained” and “commissioned.” In her view, “retained” is not applicable because it is in the past tense, and she says, only includes attorneys already working for the Department of Justice. She then argues that the word “commissioned” cannot be applied in this context, as it refers to tasking an attorney with litigation. In her view, this statute cannot permit the appointment of special counsels, as she believes Congress would have used the word “appoint,” and because “commissioned” and “retained” are not synonymous with appointment.
The next relevant statute Judge Cannon reviews and precedes to mangle interpretation of is 28 U.S. Code § 533, which is quoted below.
The Attorney General may appoint officials—
(1) to detect and prosecute crimes against the United States;
(2) to assist in the protection of the person of the President; and
(3) to assist in the protection of the person of the Attorney General.
(4) to conduct such other investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General.
In this statute, the quote “The Attorney General may appoint officials to detect and prosecute crimes against the United States” seems to clearly validate the appointment of Special Counsels, but once again, Judge Cannon is forced to employ semantic gymnastics to justify her nonsensical conclusion. This time, Cannon argues that this statute does not vest Special Counsels because she finds that the word “officials” is not synonymous with the word “officers,” (46) and that while some “officials” may be “officers,” the statute, in her view refers solely to non-officer employees, and would not include the Special Counsel, who is an officer.
Both 28 U.S. Code § 533 and § 515 clearly vest the appointment of Special Counsels. Judge Cannon’s ignorant dismissal of these statues as evidence of such does not just demonstrate her judicial incompetence, it is dangerous.
As you may note, Special Counsels have been appointed many times in American history, dating back to Ulysses S. Grant in 1875. On page 36 of the ruling, Cannon attempts to justify this history with her ruling. Cannon does seem to accept that the United States has a long history of Special Counsels, however, she casts this history as largely irrelevant. Cannon argues that the roles of Special Counsels throughout history have been vastly different, that Special Counsels have had different titles throughout history, that they have been appointed in different ways, and that Congress has shown throughout history that it can vest the appointment of such counsels.
Judge Cannon's dismissal of the history of Special Counsels is, once again, mistaken and wrongly reasoned. First of all, yes, Special Counsels have not had the same functions throughout history, they have not had the same titles, and these counsels have had varied methods of appointment. With that said, you cannot simply ignore decades of historical precedent simply because of small variations in function, title, and appointment. The overlying theme remains the same: throughout American history, Special Counsels have been utilized when there has been a conflict of interest. While these differences should certainly be taken into account when discussing their validity, to dismiss the history altogether and rule it irrelevant is beyond immature.
Next, on page 53 of the Ruling, Judge Cannon moves to Supreme Court precedent, specifically United States v. Nixon, where she continues to disregard common sense in favor of self-defeating circular reasoning. The quote below is the disputed part of the ruling.
Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of
his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure. The regulation gives the Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties.
This part of the ruling appears in an introductory paragraph to offer context. In her ruling, Judge Cannon finds the statement as dictum. Dictum is a legal concept that occurs when a court makes a statement that is insignificant to the outcome of a case and is not binding as a precedent. Cannon finds this statement to be dictum because the constitutionality of the Special Counsel in the case was never challenged, as it was not directly in question in the case, and she found it insignificant to the outcome of the case.
To her credit, Judge Cannon is correct that the constitutionality of the Special Counsel in the case was never challenged. However, this ignores why Nixon never attempted to challenge the validity of the Counsel. Nobody, until now, has even dared to make such an outlandish and far-fetched argument about the constitutionality of Special Counsels, even Richard Nixon. To me, this underscores just how far Conservatives Judges around the Country are willing to go, making radical arguments that have never been seen before. More so, her finding that this is irrelevant to the case is beyond questionable. To bring the case before the court in the first place, the Special Counsel had to have been constitutionally appointed. If the Special Counsel had been wrongly appointed, the Supreme Court, as Cannon has done, could have dismissed the case altogether.
Lastly, on page 65, Judge Cannon dismisses 2 cases from the United States Court of Appeals for the District of Columbia Circuit (DC Circuit Court). The first case is the In Re Sealed Case, 832 F.2d 1268 (D.C. Cir. 1987), which challenged an Independent counsel's prosecution of the Iran-Contra affair. In that ruling, the Court found that under the Nixon ruling, the Independent Counsel was valid. The Court again addressed this issue in 2019 in re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019), where the authority of Special Counsel Robert Mueller was challenged on the basis that he was not an “inferior” officer. The Court again, under Nixon dismissed the challenge, saying that the paragraph in Nixon was a necessary “anecdote” to the case. To these cases, Aileen Cannon essentially says that because the courts got it wrong (in her view) she does not find them convincing.
Judge Cannon spends the next 25 (approximation) pages of her ruling talking mostly about whether Jack Smith is a “principal” or “inferior” officer. While she ends up refusing to rule on the issue and leaving it for higher courts, Cannon suggests that even if Congress were to vest the appointment of Special Counsels, they may be “principal” officers. She then goes on to dismiss the case, and in the process, also mentions (on page 85) that the Special Counsel system violates the appropriations clause, as funds are drawn from an indefinite fund.
Judge Cannon's ignorance of crucial judicial precedent from the DC Circuit is not only reckless but is entitled and represents a lack of respect for the Court. Cannon was tasked with an unprecedented question that will shape the American judicial system for years to come. When a Judge is tasked with this kind of question, they should make use of what precedent they have. Cannon does the opposite, she ignores precedent and creates her own without any respect for the Legal system of the United States.
Earlier in this article, I said that Judge Cannon's antics are not just laughable, but they are dangerous, and I mean it in so many ways. We cannot let Former President Trump get away with what he has done, and this dismissal sets a dangerous precedent. I am even more concerned about what Cannon's Judicial career may look like under a Trump Presidency. There is little doubt in my mind that Judge Cannon would not be on a shortlist for a Supreme Court nomination if Trump wins. If Cannon were to be selected for the Supreme Court, it would not only reward her lawlessness, but it would also set a dangerous example of how Judges must rule to be in Trump’s favor.
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