It is said that no good deed goes unpunished. Seeking to avoid the appearance of Biden’s own appointees investigating his political rival Merrick Garland appointed Special Prosecutor Jack Smith to independently investigate Donald Trump’s potential crimes. Smith would eventually bring charges in the District of Columbia related to Trump’s inciting January 6th, and charges in South Florida for hiding classified documents in Mar-a-Lago, lying about having them, and tampering with witnesses to conceal his crimes.
The judge in South Florida, Aileen Cannon, was appointed to the position by the defendant. From the beginning she acted to protect Trump, and the United States Court of Appeals has already ruled once that she abused her discretion in favor of the defendant who gave her this job.
Today she abused that discretion again, and even worse. She dismissed classified documents case claiming Jack Smith’s entire appointment, and every penny spent on the investigation, are illegitimate. You can read her decision HERE.
To do so she ignored plain statutory text, deciding for herself Congress didn’t mean to do what the words in the law plainly says Congress did. She dismissed the directly on point words of a unanimous Supreme Court decision as mere “stray language” that can simply be ignored. She did that while treating concurring, and even dissenting, opinions by Justices Scalia and Thomas, in wholly unrelated cases that did not even consider the issue, as persuasive.
This may be a rather dense explanation, but I will attempt to distill why this decision is wrong and must be reversed.
The Constitution: The Appointments Clause
Article II Section 2 Clause 2 of the Constitution of the United States grants the President the power to appoint, with the advice and consent of the Senate, Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” It then goes on to say 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 the Heads of Departments.”
In short, certain high executive branch and judicial officials must be appointed with Senate concurrence. However, various “inferior officers” otherwise provided for by law may be appointed by the President or Heads of Departments, like Merrick Garland who is the Head of the Department of Justice.
So the question here boils down to whether any law allows Garland to appoint a special counsel like Jack Smith. Despite a long history of special prosecutors in this country, Judge Cannon ruled that Congress did not make any law allowing for their appointment by the executive branch alone.
The Law: 28 U.S.C. §§ 515 and 533
While other statutory provisions were discussed, the two most on point were 28 U.S.C. § 515 and § 533. Either of these provisions should be sufficient, cumulatively they are more than dispositive of the question.
§ 515 states:
(a) The Attorney General or any other officer of the Department of Justice, or 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, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.
(b) 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.
Today Judge Cannon found that these words do not empower the Attorney General to “specially appoint” a “specially retained” attorney to conduct legal proceedings that include criminal and grand jury proceedings. Yes, it’s that simple and the abuse is that obvious.
§ 533 in relevant part states even more directly and succinctly that:
The Attorney General may appoint officials--
(1) to detect and prosecute crimes against the United States
So to be clear about this, Judge Cannon ruled today that these words do not empower the Attorney General to appoint officials “to detect and prosecute crimes against the United States.” Yes, it’s that simple, and the abuse is that obvious.
To get there Cannon argues that “retained” in § 515 does not mean appointed and so “there is no granting of appointment power.” As for § 533 Cannon delcared that Congress “does not hide elephants in mouseholes” ruling that Congress did not intend this provision to allow something as a big and important as a special prosecutor. In a painful parsing of words, Cannon deems Smith an “officer” and not an “official” (the word used in the statute). Though Cannon insists the plain and ordinary meaning of these words are very different, that “the terms are not synonymous,” they are in fact strong match synonyms for each other.
The United States Supreme Court: United States v. Nixon
As clear and direct as the words of the statues seem the United States Supreme Court has directly commented on the exact question and it did so unanimously. The case is United States v. Nixon, where another president was investigated for abusing power to stay in power. Special prosecutor Leon Jaworski was appointed to investigate. Jaworski subpoenaed President Nixon, who challenged the subpoena. The matter was resolved when a unanimous Supreme Court ruled the subpoena legitimate and that Nixon must comply with it. In so doing the Supreme Court stated:
“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.”
Note that the Supreme Court expressly cites §§ 515 and 533 discussed above as conferring on the Attorney General the precise power that Judge Cannon today declared the Attorney General does not have. To which, Judge Cannon dismisses these direct, on point words, unanimously declared words by the highest court in the land, to which all other courts are bound, with (and I am paraphrasing here) “pfffft dicta.”
Judge Cannon declares that it is mere dictum because the Supreme Court did not spend much time on the question. The notion that it was an easy call, not requiring much time to consider, never seems to enter her mind. In her view, the words above involved the Supreme Court just assuming the question, not deciding it. The words above, are in her view, not but “stray language” carrying no weight. The Supreme Court’s words reduced to something akin to the mere mewings of a lost cat.
While she argues these unanimously agreed to words in Nixon can be dismissed because she feels the court did not pay attention to that specific issue, she argues that a concurrence by Justice Thomas in the wholly unrelated immunity decision are persuasive. Thomas argued the Nixon decision did not actually specifically evaluate the statutes it listed as supporting the proposition that the Attorney General can appoint special prosecutors.
For the record, two different United States Court of Appeals have treated the very same words in Nixon as resolving the issue. One of those special prosecutors was Robert Mueller. Judge Cannon decided those cases were not binding because they were not in her circuit and not persuasive because they merely accepted the United States Supreme Court’s words as binding without, you know, thinking of a way they might not be binding.
Conclusion
This is a judge reasoning backwards, from her desired conclusion through and around the law. This is judicial activism. This is a corrupt judge rewarding a defendant who gave her the job.
