Yet another marriage of convenience. In the nick of time. A shotgun wedding, if you will. A match made in … well, you decide. Gifting the already convicted former President Donald Trump a critical get-out-of-court card. So, while Trump stole the documents, Judge Aileen Cannon stole the law. With extraordinary arrogance and remarkably limited legal acumen, Judge Cannon shut down the Mar-a-Lago stolen-documents case before it even began. The case many experts regarded as the most open-and-shut case against Donald Trump.
I know it can get confusing when we talk about the multiple cases the former president faces. But this is the case that deals with how Donald Trump illegally removed highly classified documents from the White House, including information about our nuclear secrets, then packed them up in cardboard boxes and took them to Mar-a-Lago, his Florida country club/home where he haphazardly stored them in a public ballroom, his office, and a bathroom.
I have previously written about the case on October 8, 2023.
The case, played out over the last few years, revolves around the multiple attempts the National Archives and Records Administration (NARA) made to regain possession of the documents. Unfortunately, its reasonable attempts were met with the continuing efforts of Donald Trump and his co-conspirators to lie about the number of documents Trump had taken, then, by hiding many and refusing to give them back, impeding and obstructing NARA, as well as the FBI.
ABC News provides this partial timeline:
Efforts to retrieve the documents began in early 2022 when officials with the National Archives said they had retrieved 15 boxes of presidential records that Trump had ‘improperly’ taken to his Mar-a-Lago estate after leaving the White House. Trump was then subpoenaed for the return of additional documents authorities said he still possessed.
In June, federal agents visited Mar-a-Lago to search for additional materials, after which prosecutors said an attorney for Trump signed a statement attesting that all classified documents at Mar-a-Lago had been turned over to federal investigators. Two months later, FBI agents raided the South Florida estate and found more than 100 additional documents with classified markings that had not been turned over.
On November 18, 2022, the Department of Justice announced that Attorney General Merritt Garland had appointed and authorized Special Counsel Jack Smith to investigate both possible interference in the 2020 election and the removal of the classified documents:
Jack Smith’s extensive investigation resulted in the seating of a grand jury and the voting of indictments. On July 27, 2023, Smith filed this Superseding Indictment that lists the laws the government claims Trump violated:
As an example, 18 U.S. Code § 793 is entitled “Gathering, transmitting or losing defense information,” and states:
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer — Shall be fined under this title or imprisoned not more than ten years, or both. (Emphasis added.)
Smith succinctly states that Trump, Walt Nauta, and Carlos De Oliveira engaged in a conspiracy “for TRUMP to keep classified documents he had taken with him from the White House and to hide and conceal them from the federal grand jury.” The indictment charges that among the hundreds of documents was “information regarding defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack.” The document states:
The unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods. (Emphasis added.)
Donald Trump pleaded not guilty to the 40 counts of the indictment.
So, now that your memory is refreshed, Judge Aileen M. Cannon, the federal district judge presiding over the case, wants you to forget about everything that actually happened. Because, for Cannon, like Trump, the only important issue here is process not substance: the appointment of Jack Smith and how he is funded. And while Cannon many times postponed any serious attempt to address the critical national security issues highlighted in the indictment, and has repeatedly delayed any attempt at a trial, she has chosen instead to act on Donald Trump’s February 22, 2024 “Motion to Dismiss Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith”]:
Trump argues:
The creation of the Special Counsel Office violated the Appointments Clause. The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States …
Here is Article II, Section 1 of the Constitution and the various sections Donald Trump refers to in his motion:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows … Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: – ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’ (Emphasis added.)
Then, there is Section 2:
The relevant phrase refers to the President’s power “with the advice and consent of the Senate, shall appoint … all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law …” Then this important addition: “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.”
Section 3 states, “… he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” (Emphasis added.)
Now, take a deep breath, because we are about to read about a dispute centered on the differences between the appointment powers of the president and that of Congress, and the difference between “officers” and “inferior officers.” So forget about our nuclear secrets; it is now all about the words.
Trump argues:
The Smith appointment violates the Appointments Clause. The Constitution vests all ‘executive Power’ in a president, who must ‘take Care that the Laws be faithfully executed.’ U.S.CONST. art. II, § 1, cl. 1, § 3. The Appointments Clause requires that all federal offices ‘not . . . otherwise provided for’ in the Constitution—every office other than the president—must be ‘established by Law,’ i.e., by Congress. U.S. CONST. art. II, § 2, cl. 2. The Appointments Clause requires that any appointment be with the ‘Advice and Consent of the Senate.’ Id. It follows, then, that to properly establish a federal office, Congress must enact it …
Trump makes this claim about Article 1, Section 8:
The Necessary and Proper Clause authorizes Congress to create federal offices to exercise such power … There is, however, no statute establishing the Office of Special Counsel. As a ‘Special Counsel,’ Smith’s appointment is invalid and any prosecutorial power he seeks to wield is ultra vires.
Trump states that “Congress may by law vest the appointment of such inferior officers;” however, he turns to argue:
The DOJ Statutes Do Not Vest The Attorney General With Appointment Authority. Jack Smith is not an ‘Officer’ under the statutes cited by Attorney General Garland. At best, he is an employee. See 5 U.S.C. § 3101 (‘Each Executive agency, military department, and the government of the District of Columbia may employ such number of employees of the various classes recognized by chapter 51 of this title as Congress may appropriate for from year to year.’ …).
In appointing Smith, Attorney General Garland relied on regulations promulgated by Janet Reno pursuant to the Ethics in Government Act of 1978, Pub. L. No. 95-521. See Office of Special Counsel, 64 Fed. Reg. 37,038 (July 9, 1999) (codified at 28 C.F.R. §§ 600.1-600.10) (the ‘Reno Regulations’).
Believe me, I understand if your head has begun to hurt. But this all turns out to be important. Trump argues that while under the Reno Regulations, the attorney general may “appoint an outside Special Counsel to assume responsibility for [a] matter.” 28 C.F.R. § 600.1. However, the Reno Regulations are not the type of ‘law’ that can ‘establish[]’ a federal office because the Appointments Clause dictates that only Congress can create a federal office. See U.S. CONST. art. II, § 2, cl. 2.”
Trump argues:
The Reno Regulations cite as authority 5 U.S.C. § 301 and 28 U.S.C. §§ 509, 510, 515-19. The order appointing Smith cites each of these statutes except § 301. However, none of these statutes do not provide authority for a ‘Special Counsel.’ [sic] Section 301 is a general provision for the issuance of regulations by the head of any Executive department, and the provision does not create an office or authorize the creation of an office. Reading § 301 as general authorization for appointment of officers renders superfluous the entirety of the numerous more specific provisions for appointment of officers throughout the United States Code, which are not cited in the Reno Regulations. See, e.g., 28 U.S.C. §§ 503-507A, 532, 541-42, 561, 581-82, 599 A. Sections 509 and 510 of Title 28 relate to the authority among DOJ officers or employees and the numerous agencies that fall under DOJ’s ambit, but these provisions do not authorize the appointment of new officers or permit the Attorney General to create new offices. (Emphasis added.)
I dropped out of a doctoral program in American Studies because my brain rebelled at the endlessly pretentious and manipulative wordplay. And Trump and Cannon are all about the misuse of words, opting for misinformation rather than accuracy.
Take a moment to look at 28 U.S. Code §515, entitled “Authority for legal proceedings; commission, oath, and salary for special attorneys”:
Despite language like “any attorney specifically appointed by the Attorney General under law, may … conduct any kind of legal proceeding …” Trump insists:
Sections 515 through 519 of Title 28 do not authorize the creation of a Special Counsel. Section 515(a) concerns the powers of an ‘officer’ or ‘any attorney specially appointed by the Attorney General under law,’ meaning lawfully appointed pursuant to other statutory provisions. Thus, § 515(a) is not a grant of power to appoint a private citizen as Special Counsel, but a mere jurisdictional allocation for duly appointed officers and specially appointed attorneys previously authorized by Congress in some other provision …. (Emphasis added.)
And while Section (b) states, “Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General and shall take the oath required by law,” Trump insists:
Relatedly, 28 U.S.C. § 515(b) is not a grant of authority to retain or to hire new officers. The statute is limited to attorneys ‘retained under authority’ of DOJ. Id. Such an attorney must be commissioned as a ‘special assistant to the Attorney General or special attorney,’ not a ‘Special Counsel.’ … these provisions do not confer authority to create an office or appoint officers. (Emphasis added.)
Now, how about we take a close look at the 1999 law Trump refers to as the Reno Regulations, whose provisions include this clear statement: “The Attorney General … will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted …” Words that Trump vigorously asserts “do not confer authority to create an office or appoint officers.”
Onto to Trump’s other issue:
The Funding Of Smith’s Investigation Violates The Appropriations Clause. President Biden’s DOJ is paying for this politically motivated prosecution of Biden’s chief political rival ‘off the books,’ without accountability or authorization. Rather than funding the Special Counsel’s Office through the ordinary budget process, Jack Smith is drawing on a permanent indefinite appropriation that, by its terms and under the Reno Regulations, is not available to Special Counsel. Thus, Smith’s funding violates the Appropriations Clause. Like the Appointments Clause defect, the Appropriations Clause violation is an issue of first impression in the Eleventh Circuit and serves as another basis for dismissal.
Special Counsel Jack Smith addressed these issues in his March 7, 2024 filing, “Government’s Opposition to Donald Trump’s Motion to Dismiss Based on the Appointment and Funding of the Special Counsel.”
Smith points to both the Constitution and U.S. law to make his point:
The Constitution’s Appointments Clause permits Congress ‘by Law’ to vest the appointment of ‘inferior Officers’ in the ‘Head of [a] Department.’ U.S. Const. art. II, § 2, cl. 2. The Attorney General is the head of the Department of Justice and has exclusive authority (except as otherwise provided by law) to direct ‘the conduct of litigation’ on behalf of the United States. 28 U.S.C. §§ 503, 516. Congress has ‘vested’ in the Attorney General virtually ‘[a]ll functions of other officers of the Department of Justice,’ id. § 509, and empowered him to authorize other Departmental officials to perform his functions, id. § 510. Congress has also authorized the Attorney General to commission attorneys ‘specially retained under authority of the Department of Justice’ as ‘special assistant[s] to the Attorney General or special attorney[s]’ and provided that ‘any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal . . . which United States attorneys are authorized by law to conduct.’ Id. § 515(a) & (b). Congress has also provided for the Attorney General to ‘appoint officials . . . to detect and prosecute crimes against the United States.’ Id. § 533(1). These statutes authorize Attorneys General to appoint special counsels and define their duties. See, e.g., United States v. Nixon, 418 U.S. 683, 694 (1974).
Smith adds to this reference the recent history of funding Special Counsels:
Now here is an important excerpt from the Supreme Court’s decision in United States v. Nixon:
United States v. Nixon, 418 U.S. 683 (1974), Decided Jul 24, 1974. Highlighting added.
Judge Cannon has often chosen multiple ways to delay this case, and she recently invited outside expert testimony on both the issues of “appointment” of the Special Counsel and the “appropriation” of funds to pay for the office. Former Attorney General Ed Meese was one of those who wrote a brief. On March 15, 2024, Jack Smith addressed some of the issues Meese raised in the “Government’s Response to Meese Amici Curiae Brief in Support of Donald J. Trump’s Motion to Dismiss Based on the Appointment of the Special Counsel.”
God bless Jack Smith for managing to conjure up the patience to put aside the very urgent need to deal with the ramifications of stolen top-secret documents to argue with Trump attorneys and friends about the meaning of ordinary words like “officer” and “inferior officer.”
In support of the notion that the Special Counsel is not an officer whose appointment by the president requires the advice and consent of the Senate but an inferior officer appointed by and under the direction of the attorney general, Smith writes:
An inferior officer is one who reports to and is supervised by a superior officer. Supreme Court authority establishes that the governing test for identifying an ‘inferior Officer’ asks whether the official is subject to supervision and oversight by other officers appointed by the President with Senate consent. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court held that an independent counsel appointed by a Special Division of the D.C. Circuit under the Ethics in Government Act ‘clearly falls on the “inferior officer” side’ of the line separating principal and inferior officers. Id. at 671. The Court explained that the independent counsel was “subject to removal by a higher Executive Branch official” for good cause, which ‘indicate[d] that [the independent counsel] [was] to some degree “inferior” in rank and authority.’ Id. (Emphasis added.)
Smith adds:
Although the Special Counsel regulation has the force of law while in effect, it may also be revoked in the Attorney General’s sole discretion. See Nixon, 418 U.S. at 696 (noting that ‘it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor’s authority’); In re Sealed Case, 829 F.2d 50, 56 (D.C. Cir. 1987) (‘[T]he Independent Counsel: Iran/Contra serves only for so long as the March 5, 1987, regulation remains in force. Subject to generally applicable procedural requirements, the Attorney General may rescind this regulation at any time, thereby abolishing the Office of Independent Counsel: Iran/Contra.’).
Which leads to this:
Now, much like the frightening Coney Island barrel ride of my youth, we are about to enter a universe where you have to hope you won’t lose your mind when the floor under you disappears. Because the real world has become the dark, cold world of MAGA Judge Aileen M. Cannon, who never expresses a single bit of concern for the almost unimaginable conduct of the defendants or the damage they inflicted and could easily continue to inflict on our national security.
We are now forced to consider how and why, on July 15, 2024, with her “Order Granting Motion to Dismiss Superseding Indictment Based on Appointments Cause Violation,”
Cannon has dismissed this entire case.
She writes:
The Motion before the Court challenges the legality of Special Counsel Smith (hereinafter, ‘Special Counsel Smith’ or ‘Special Counsel’) in two consequential respects, both of which are matters of first impression in this Circuit, and both of which must be resolved before this prosecution proceeds further [ECF No. 326].
For most of us who aren’t attorneys “matters of first impression in this Circuit” is defined according to legaldictionary.net as “a case in which an issue that has not previously been considered or decided by a higher court. This means that there is no legally binding authority by which the case must be decided.”
Cannon continues:
The first is a challenge to his appointment under the Appointments Clause, which provides the exclusive means for appointing ‘Officers of the United States.’ Article II, § 2, cl. 2. The Appointments Clause sets as a default rule that all ‘Officers of the United States’—whether ‘inferior’ or ‘principal’—must be appointed by the President and confirmed by the Senate. Id. It then goes on to direct that ‘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 Heads of Departments.’ Id. For purposes of this Order, the Court accepts the Special Counsel’s contested view that he qualifies as an ‘inferior Officer,’ not a ‘principal’ one, although the Court expresses reservations about that proposition and addresses those arguments below. The Motion’s second challenge is rooted in the Appropriations Clause, which prohibits any money from being ‘drawn from the Treasury’ unless such funding has been appropriated by an act of Congress. Art. I, § 9, cl. 7 (‘No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …’).
Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment — 28 U.S.C. §§ 509, 510, 515, 533 — gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise.
The bottom line is this: 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 the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause. (Emphasis added.)
Her unnecessary rhetoric, “the strained arguments” and “inconsistent history” and “reliance on out-of-circuit authority,” either ignores or misstates Smith’s appeal to the Constitution and congressional legislation. Like Trump, I believe Cannon misreads the Appointments Clause: The important phrase here refers to the fact that “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.”
Cannon’s decision is marked by an unearned absolutism:
None of the statutes cited as legal authority for the appointment — 28 U.S.C. §§ 509, 510, 515, 533 — gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. (Emphasis added.)
Cannon unnecessarily mischaracterizes an appointment that is squarely in the tradition of the many special prosecutors previously appointed by both Republican and Democratic presidents alike: “The Special Counsel’s position effectively usurps [congressional] legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers.”
Now, let’s take a closer look at the particular statutes that Cannon categorically declares don’t “give the Attorney General broad inferior-officer appointing power.” First, 28 United States Code §509:
It states that the attorney general has been vested with authority over “all functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice,” except those functions delegated to administrative law judges employed by the DOJ and those engaged in Federal Prisons Industries Inc.
And, once again, here is 28 United States Code §515:
It says simply:
The Attorney General or attorney specifically appointed by the Attorney General under law may, when specifically directed by the Attorney General, conduct any legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges …
Just what the attorney general accomplished with the appointment of Jack Smith.
Last, but not least, Judge Cannon lists 28 United States Code §533:
Which notes that the attorney general may appoint officials to “detect and prosecute crimes against the United States” and to investigate “official matters under the control of the Department of Justice and the Department of State,” like the theft and possession of official government documents.
Despite these realities, Judge Cannon writes:
Once again a MAGA judge has distorted the clear meaning of our Constitution. Only by murdering words and replacing common sense with right-wing ideology can Judge Cannon claim:
Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no. None of the statutes cited as legal authority for the appointment— 28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. (Emphasis added.)
With Dobbs and the immunity decision and Cannon’s willingness to turn a blind eye to the theft and sharing of our top-secret documents, we are living in perilous times. Hopefully, this less-than-mediocre MAGA decision will be reversed on appeal and our judges will learn once more to respect the laws they have sworn to uphold.
