She very well might be overruled. But the central question here is not a settled matter of law, writes legal columnist Elie Honig.
One of the four criminal cases against Donald Trump has officially bitten the dust, for the moment at least.
Judge Aileen Cannon yesterday issued a surprising (but not quite shocking) ruling dismissing DOJ special counsel Jack Smith’s indictment of Trump for retaining classified documents at Mar-a-Lago and obstruction of justice. While it’s become trendy to impugn Judge Cannon’s intelligence, integrity, and motives, anyone who declares that her ruling was definitively right or wrong is just guessing at this point. We’ll find out eventually, and the appeals courts might well eventually reverse Judge Cannon — but the ruling, while drastic in its impact, is not facially preposterous.
It’s important to establish up front that the dismissal has nothing to do with the merits of the Mar-a-Lago indictment. Judge Cannon’s decision says nothing about the strength of the evidence or Trump’s substantive culpability. (In my view, this is the strongest of the four Trump indictments.) Nor does the dismissal turn on any assessment of the political motives of Smith or the Justice Department — contrary to Trump’s tiresome claim that the case is a “witch hunt,” which he repeated immediately after he got the good news.
Judge Cannon’s ruling is purely about constitutional structure. In sum: Under the Appointments Clause, “Officers of the United States” must be nominated by the president and confirmed by the Senate. Judge Cannon accepted Trump’s argument that, as special counsel, Smith holds essentially the same official powers as the attorney general or a U.S. attorney — to investigate, indict, and try federal criminal cases — but was merely appointed by the AG and was neither presidentially nominated nor Senate confirmed. Congress has not passed a law creating the special counsel as an official government position. Third Degree With Elie Honig
Smith countered that, even in the absence of a specific statute, Attorney General Merrick Garland appointed Smith pursuant to long-standing federal regulations and as a valid application of the AG’s broad power to delegate law-enforcement authority.
