Cannon’s Trump case dismissal rejects court precedents

Jack Smith, the special counsel, delivers remarks about the indictment of former President Donald Trump in Washington, June 9, 2023. (Kenny Holston/The New York Times)

By Charlie Savage

In declaring that the appointment of Jack Smith as a special counsel was illegitimate and throwing out his indictment against former President Donald Trump in the classified documents case, Judge Aileen Cannon cut against decades of rulings by higher courts.

But Cannon, a Trump appointee who has previously made unusual rulings in his favor only to be reversed, argued that the original Supreme Court precedent those cases trace back to was unpersuasive, especially in light of subsequent developments in the law. Others had simply relied on that case without performing new analysis, she added.

Under the Constitution, Congress can give the heads of departments in the executive branch the authority to appoint “inferior” officers. Even as she expressed doubt about whether a special counsel, who wields the same powers as a United States attorney, a presidentially appointed, Senate-confirmed position, should have that status, Cannon accepted that it does for the purpose of her analysis.

She then turned to the question of whether Congress had authorized Attorney General Merrick Garland to appoint someone from outside the government as a special counsel. While Smith is a former Justice Department prosecutor, he worked for an international court in Europe at the time Garland asked him to handle the criminal inquiries into Trump.

The Justice Department argued that it had, citing a series of statutes in which lawmakers empowered attorneys general to appoint officials “to detect and prosecute crimes against the United States,” and may assign any attorney he has “specially appointed” under law to “conduct any kind of legal proceeding, civil or criminal.” But Cannon said those laws were not good enough.

Her decision rejected what the Supreme Court said in its landmark ruling in 1974. The decision upheld a subpoena by the special prosecutor assigned to take over the Watergate inquiry, Leon Jaworski, who sought President Richard Nixon’s secret Oval Office recordings. While a former Justice Department official, Jaworski had been in private practice at the time of his appointment.

In a unanimous ruling, Chief Justice Warren Burger wrote that the Supreme Court noted that Congress had vested in the attorney general the “power to conduct the criminal litigation of the United States government” and “the power to appoint subordinate officers to assist him in the discharge of his duties.” The attorney general had delegated prosecutorial authority to Jaworski, the chief justice added.

The Justice Department argued that this was crucial to the outcome of the case, so it counts as binding law. But Cannon wrote that it was so-called dicta — passing remarks in a judicial opinion that are tangential to the case and so are not considered to be binding law. The question of Jaworski’s appointment had not been extensively briefed and argued, unlike other matters in the ruling, she noted.

“Following a comprehensive review of the Supreme Court record, the court concludes that the disputed statement from Nixon is dictum,” she wrote. “The issue of the attorney general’s appointment authority was not raised, briefed, argued, or disputed before the Nixon Court.”