Trump Dodges Another Bullet: Jack Smith

Everything really is going Donald Trump’s way in the six weeks since his conviction on May 30. Trump pulled in a vast fundraising haul after the conviction, jumping ahead for the first time in the campaign cash race while his conviction barely dented his standing in the polls. The intermediate appeals court in Georgia issued a stay order halting Fani Willis’s prosecution of Trump.

\The Supreme Court took two big bites out of Jack Smith’s indictment of Trump in D.C., with an immunity ruling and a decision on the obstruction-of-a-proceeding statute that will both require further, time-consuming litigation to see how they have narrowed the case. Acting Justice Juan Merchan delayed Trump’s state-court sentencing in New York from mid July to mid September in order to consider whether Trump’s conviction violated his immunity from having evidence of official acts introduced at his trial. His opponent melted down so badly in their first debate that Joe Biden is still fending off calls to drop out of the race, and has reportedly seen his fundraising dry to a trickle with big donors.

Then, Trump survived an assassination attempt and emerged looking vigorous and defiant. He will probably raise another mountain of cash after the shooting in Butler, Pa., which left a flustered Biden scrambling to pause his attack ads and reconsider the vitriol of his attacks on Trump. MSNBC even sidelined Morning Joe for the day out of fear of going overboard against Trump. And now, rolling into today’s curtain-opening of the Republican convention and announcement of Trump’s running mate, Judge Aileen Cannon has thrown out what once seemed the strongest of the cases against the former president: the retention of boxes of classified and sensitive documents at Mar-a-Lago after Trump left office.

Expect a chorus of incredulity at Judge Cannon’s thorough 93-page opinion, which reaches a conclusion embraced by Justice Clarence Thomas in a concurring opinion in the immunity case. Her conclusion: that Smith, as special counsel, was never properly appointed as an officer of the United States and therefore could not constitutionally oversee the indictment and prosecution of Trump in the name of the United States and under its authority. Andy McCarthy has previously explained in depth the constitutional theory under the appointments clause of Article II:

The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint 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: 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. [Emphasis added]

In short, the argument goes like this:

First, the power to initiate and prosecute criminal cases in the name of the United States is an executive power that can only be exercised by an “officer of the United States.” In a typical case, that power is exercised by the U.S. Attorney for a particular district, or by a senior official of the Justice Department — and carried out by subordinates under their supervision. The whole theory of an “independent” special counsel is that he is appointed as a substitute for such an officer, and operates without direct oversight by anyone in DOJ, although he is ultimately accountable to the attorney general. The special counsel regulation purports to vest him “with the full power and authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Thus, standing in the place of a U.S. Attorney and exercising at least the same powers, he must be an officer of the United States.

Second, there are two ways to become an officer, and many positions meet both of them: You can be appointed by the president with Senate confirmation, or your position can be created by statute (thus, “established by Law”).

Third, many special counsels, such as David Weiss (the special counsel for Hunter Biden), are already officers of the United States because they are currently serving as U.S. Attorneys. Because of this, there have not been a lot of serious challenges to their appointments. But Smith was a private citizen when appointed.

Fourth, Smith isn’t appointed by Biden. He isn’t Senate-confirmed. So, he can be an officer only if some law created his position.

Fifth, it didn’t. Smith’s role is created only by regulations issued by the attorney general (they were promulgated by Janet Reno after the Independent Counsel law expired in 1999). Unlike the old Independent Counsel statute, there is no special-counsel law.

No statute passed by Congress authorizes or creates the special-counsel role. And the current Supreme Court would not likely find that the attorney general can just create constitutional offices by regulation without a statute. Indeed, Judge Cannon, in a footnote, cites a 1998 article by Brett Kavanaugh arguing that a new statute would be needed to create the special-counsel position. And as she notes, Congress in the past has not only created such positions but also defined their powers — which it did not do here because it never created such a specific position. There are a number of statutes that authorize varying kinds of hiring by the attorney general of people to assist the Justice Department in criminal cases. Cannon found none of them persuasive.

Cannon did not decide whether, as some amicus briefs argued, a special counsel is not just an officer but a principal officer, whose appointment would require Senate confirmation, although she laid out reasons to believe that the role might meet the test for a principal officer: “because the answer under current Supreme Court precedent is not self-evident, and because this Court need not rely on this ground to dispose of the Appointments Clause challenge in the Motion, the Court elects to leave the matter for future review.”

She also concluded, in a much briefer analysis, that Smith’s funding violated the appropriations clause on the theory that his investigation was being funded under the now-repealed Independent Counsel Law, which does not create his position. But having ruled that his appointment was unconstitutional, she didn’t get into what remedy might exist solely for the appropriations-clause violation.

All of this raises a number of questions about what comes next. Cannon didn’t just pause the case; she dismissed the indictment entirely. She chided Smith for not offering any lesser remedy, and added:

Special Counsel Smith’s work cannot be salvaged by the de facto officer doctrine, which, in some circumstances, confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. . . .

The doctrine is designed to address technical defects in title to office. . . . Here, the problem is no mere “technical defect” — instead, the problem is the absence of a statutorily created office to fill in the first place. As the Supreme Court has made clear, there can be no officer, either de jure or de facto, if there is no office to fill. [Alterations and citations omitted.]

In the event that the Justice Department is unable to get Cannon’s ruling overturned, that means the case would have to be resubmitted from scratch to a grand jury, by an officer properly appointed. It may be that Trump and his two co-defendants would challenge a second indictment under the double jeopardy clause or the statute of limitations; I don’t know offhand if the double jeopardy clause would present any issues when an indictment was dismissed as essentially a nullity, or whether there are yet any limitations issues (I’m skeptical on both grounds). One thing that works in the DOJ’s favor is that Cannon wrote, “This Order shall not affect or weaken any of the protections for classified information imposed in this case or any protective orders pertaining to classified information,” so if the case is resurrected, that time-consuming work need not be replicated.

Cannon wrote, “This Order is confined to this proceeding. The Court decides no other legal rights or claims.” But, of course, if she is right, Smith’s indictment in D.C. is defective for the same reasons. If the case goes up to the Eleventh Circuit (as is likely) and her order is sustained, and the courts in D.C. disagree, the Supreme Court will have to get involved.

In the interim, there is almost certain to be an appeal. The Eleventh Circuit is conservative-leaning, but it has hardly been lockstep friendly to Trump and his co-defendants; for example, it rejected Mark Meadows’s claim that he could remove his prosecution in Georgia to federal court. But an Eleventh Circuit appeal, too, will consume time that Smith may not have, if his goal is to get Trump convicted before Americans vote.