Mother Jones; Eric Lee/Pool//CNP/ZUMA; Southern District of Florida
Two weeks ago, the Supreme Court announced that former presidents are immune from prosecution for possibly all official acts undertaken while in office. This new rule, the majority said, was critical to preserving the separation of powers in our democracy. Justice Clarence Thomas, characteristically, went further. The real threat to democracy was not an unaccountable president but, rather, the very existence of the special prosecutor who was leading the case.
In a concurrence, Thomas questioned whether the attorney general had the authority to appoint Jack Smith, the special counsel who was prosecuting Trump. “We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee,” Thomas wrote. He called on federal judges to determine whether Attorney General Merrick Garland, himself the former chief judge on the DC Circuit Court of Appeals, had made the appointment illegally. “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding,” Thomas urged.
Today, Judge Aileen Cannon answered that call. In a shocking opinion, Cannon threw out Smith’s separate case against Trump for allegedly hiding classified documents at Mar-a-Lago and attempting to thwart an investigation into the matter. Smith, Cannon concluded, was not appointed or funded according to the rules laid out in the Constitution.
Cannon, a Trump appointee in Florida, began contemplating this question before Thomas’ concurrence in the immunity case. Trump’s legal team had filed its motion asking for the documents case to be dismissed on these grounds on February 22, and Cannon held a hearing on the question on June 21. As part of that hearing, she invited attorneys who had filed amicus briefs on the topic to argue before her. The hearing lasted four hours. A week later, the Supreme Court handed down the immunity case, and Thomas exhorted lower court judges to look into the legality of Smith’s appointment. Thomas’ invitation came just in time for Cannon to take it up, and she cited the Thomas concurrence three times.
Cannon’s decision is stunning in part because it upends the apparently settled understanding of the powers of the attorney general since the creation of the Justice Department in 1870. The Supreme Court affirmed the constitutionality of a special counsel in United States v. Nixon. And when the appointment of Robert Mueller as special counsel for the Trump-Russia investigation was challenged, the district court and the DC Circuit Court of Appeals left Mueller in place. That was five years ago.
Cannon’s decision is likely to be appealed to—and quite possibly overturned by—the 11th Circuit, where Republican-appointed appellate judges have frequently refused to comply with Trump’s wishes. But there is an undeniable trend of Thomas’ outlier opinions eventually becoming the law of the land, especially now that conservatives have a 6-3 majority on the Supreme Court. His invitation to find Smith’s appointment unlawful, despite precedent and a long history to the contrary, could ultimately win the day.
Both Thomas and Cannon frame the special counsel appointment as a violation of the separation of powers—the executive branch snatching power from Congress because, they argue, Congress didn’t explicitly create the special counsel position. This framing dramatizes what is ultimately a statutory interpretation case. Do the laws that give the attorney general the power to appoint special counsels do so explicitly enough? No one has said the Constitution forbids such a position to exist, they only challenge whether Congress has given the attorney general that permission to fill it and fund it.
Cannon ends her opinion by asserting that the executive branch has been, through more than 150 years of such appointments, upsetting the balance of powers between the three branches. “The accretion of dangerous power does not
come in a day,” Cannon wrote near the end of her lengthy opinion, quoting from former Justice Felix Frankfurter. “It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.” Finally, Cannon implies, she is putting a stop to such lawlessness.
If there’s one thing the current Supreme Court does, it is overturn longstanding precedents and previously settled understandings of the law. It overturned Roe v. Wade, threw out decades of precedents upholding affirmative action, upended potentially thousands of regulations by jettisoning Chevron Deference, and remade the presidency into an office largely unconstrained by criminal law. It would be shocking if the court decided that special counsel appointments were unlawful—but at this point it would not be out of character.
