If Trump v United States, the US supreme court majority’s shocking immunity decision on 1 July, left anyone unconvinced that America’s courts are on the ballot, federal judge Aileen Cannon just sealed the deal, dropping a sledgehammer on the rule of law. Just two weeks after the disgraceful immunity decision, she tossed out Trump’s prosecution for stealing national security documents after losing re-election, smashing the longstanding and vital authority of special counsels in the bargain.
This election, our constitutional republic is at stake, along with its first principle: no one, including the most powerful, is above the law. Only We, the People, can preserve the freedom and security our laws safeguard.
Cannon’s opinion makes a mockery of justice under law. Reduced to its essentials, she accepted the complaint of Trump’s lawyers that special counsel Jack Smith wields power too independent of the president and attorney general to fit within the statutes Congress enacted to authorize appointment of special federal prosecutors – while Trump himself was publicly saying the very opposite: that Smith is persecuting him as Biden’s puppet.
For over a year, Cannon slow-walked a grand jury’s meticulous indictment of the former president for criminally risking the free world’s safety by walking off with nuclear secrets and intelligence sources and methods, leaving them in places accessible to apparent foreign agents, and obstructing the government’s efforts to retrieve them. Now she has toppled the whole case by shredding the long-established structure through which successive attorneys general have appointed special counsel to investigate and prosecute crimes against the nation too sensitive for the justice department to handle in the ordinary course.
Cannon proceeds backwards from her desired result to its jerry-rigged justification: that the laws whose language plainly authorized special counsel Jack Smith’s appointment and oversight by the attorney general didn’t do that at all.
Only someone determined to reach that conclusion could have written what Cannon concocted. To decide that Congress never gave the attorney general authority to appoint a special counsel, she first had to set aside the landmark holding underpinning the 1974 Nixon Tapes case. She wrongly dismissed as mere “dictum” – chatter she was free to ignore – its essential conclusion that the Watergate special prosecutor who demanded the tapes was lawfully appointed.
She was wrong from the start. To get where she was determined to go, she had to set aside as irrelevant the flawless 2019 ruling of the US court of appeals for the District of Columbia which followed Nixon. That decision, the appellate court correctly concluded, had unanimously held that Congress, in enacting the very statutes Cannon found wanting here, had “vested in the Attorney General … the power to appoint subordinate officers to assist him in the discharge of his duties”.
Cannon’s tortured reasoning fails throughout her 93-page opinion. She asserts, for example, that the congressional statute authorizing the attorney general to “appoint officials … to detect and prosecute crimes against the United States” cannot mean what it says because it is “housed within a chapter [largely] devoted to the FBI”. She never explains why, if Congress intended this statute to give attorneys general broad authority to appoint only FBI officials to “detect” crimes against the United States, Congress chose to include the words “and prosecute?”
Her mental gymnastics boggle the mind. At one point, she insists that “whatever possible linguistic overlap might exist between the present-tense formulations of the verbs ‘appoint,’ ‘retain,’ or ‘commission,’ [the relevant statute …] us[es] instead the past participle adjective application.”
Never mind that Cannon’s ruling flies in the face of all relevant precedents – including those upholding the appointment of the special counsel trying Lt Col Oliver North for his role in the Iran Contra scandal and the special counsel prosecuting Hunter Biden in Delaware and California. And never mind that Congress had acquiesced for half a century in the unbroken judicial interpretation of its statutes authorizing appointments like Smith’s.
Judge Cannon’s opinion conspicuously echoes (and duly cites) Justice Clarence Thomas’s solo concurrence two weeks earlier in Trump v United States. Going beyond the immunity issue raised in that case, Thomas alone expressed doubt about the constitutionality of special counsel Jack Smith’s appointment. As though coaching Cannon from the sidelines, he invited unnamed “lower courts” to answer what he called “essential questions concerning … Smith’s appointment”, venturing where no prior court (or fellow justice) dared to tread. Cannon happily took the hint.
Smith is appealing the dismissal and may ask the court of appeals for the 11th circuit, if it reverses, to reassign the case to another judge. Twice in 2022, that court harshly rejected as utterly lawless Cannon’s appointment of a special master to review the classified documents seized at Mar-a-Lago in a judicially authorized search.
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Even if Smith’s appeal succeeds, as it should, the clock is ticking. With a supreme court Maga majority potentially ready to rescue Trump, no jury will decide this case before the election. And if Trump becomes president, his attorney general will drop this prosecution and the appeal of Cannon’s ruling faster than a radioactive hot potato.
Should the government’s appeal be dismissed, her decision would remain on the books, providing precedent to unravel all the work of all the special counsels appointed over the years under the statutes she neutered.
Inexperience alone cannot explain Cannon’s bizarre decision. Perhaps she is showing gratitude to the president who appointed her. Or perhaps, as a Maga-vetted judge of Hispanic heritage in her early 40s, she is vying, if Trump wins re-election, for a supreme court seat when an elderly justice retires. Might virtue, in Shakespeare’s words, have been “chok’d with foul ambition?”
Whatever the case, November is what matters. It’s up to us to elect a president who will take care to appoint federal judges with the integrity to heed the rule of law and preserve intact the constitution it supports.
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Laurence H Tribe is the Carl M Loeb University professor of constitutional Law Emeritus at Harvard University. Follow him on @tribelaw
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Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy