Donald Trump and his associates were charged with stealing, mishandling, concealing, and lying about classified government documents taken by Trump on his way out of the White House.听 Judge Eileen Cannon dismissed the case, claiming that Special Prosecutor Jack Smith鈥檚 appointment was unconstitutional.听 Cannon may well be right in holding that Smith鈥檚 appointment was unconstitutional, but she was not right to dismiss the case.
Jack Smith was appointed to be Special Prosecutor by Attorney General Merrick Garland under a Justice Department regulation that has been in effect since 1999, and is substantively identical to regulations that were in effect for decades and during the Nixon Watergate case, which was prosecuted by outside Special Prosecutor Leon Jaworski.听 The Supreme Court affirmed the trial court鈥檚 decision in United States v. Nixon, 418 U.S. 683, 694 (1974), noting that Jaworski had been appointed under the DOJ鈥檚 regulation.听 No prior court has taken seriously a challenge to a special counsel鈥檚 appointment under the special counsel regulations.
In 2019, two law professors published a law review article arguing that it was unconstitutional under the appointments clause for the Attorney General to appoint an outside special counsel, in that case Robert Muller, who had not been confirmed by the Senate.听 See Steven G. Calabresi and Gary Lawson, Why Robert Mueller鈥檚 Appointment as Special Counsel was Unlawful, 95 Notre Dame L. Rev. 87, 115鈥�16 (2019).听 These law professors gave Judge Cannon the legal firepower to argue that Jack Smith鈥檚 appointment violated the appointments clause of the Constitution.
Is Judge Cannon right that Jack Smith鈥檚 appointment was unconstitutional when so many other courts have turned a blind eye to the argument?聽 Calabresi, Lawson and Cannon have a colorable argument that Smith鈥檚 appointment violated the appointments clause of the Constitution.听 The appointments clause requires the President to appoint, and the Senate to confirm, all 鈥淥fficers of the United States,鈥� except for 鈥渋nferior Officers鈥� who can be appointed by others without Senate approval if they are authorized by law to make the appointment.听 .听
The Courts have recognized, however, that mere 鈥渙fficials鈥� and 鈥渆mployees鈥� can be hired without authorizing legislation, presidential appointment or Senate approval.听 The distinctions between 鈥淥fficers,鈥� 鈥淚nferior Officers,鈥� 鈥淥fficials鈥� and 鈥淓mployees鈥� is not defined in the Constitution, and depends on factors like power, authority, control, and permanency.
Jack Smith claimed to be an 鈥淚nferior Officer鈥� appointed under law by Attorney General Garland, who is an Officer appointed by the President and confirmed by the Senate.听 Judge Cannon held that the legislation cited for Smith鈥檚 appointment does not apply, and suggests that the broad unsupervised powers given to the Special Counsel might make him a 鈥淪uperior Officer鈥� who must be appointed by the President and approved by the Senate.听 The legality of Smith鈥檚 appointment turns on the uncertain characterization of his role, and the application of the laws authorizing his employment as an 鈥渋nferior officer.鈥�
So will the appellate courts agree with Judge Cannon鈥檚 determination that Smith鈥檚 appointment was unconstitutional?聽 Ultimately, until the Supreme Court decides the case there is no way to know.听 There are good arguments on both sides, and the issues are clouded by vague language and a long and inconsistent practice history.
However, there is good reason to suspect that the current Supreme Court will affirm Judge Cannon鈥檚 conclusion that Special Counsel Jack Smith鈥檚 appointment was unconstitutional.听 Justice Clarence Thomas asserted as much in his concurrence in the presidential immunity case, , and the breath of that immunity decision suggests that this Court will take an extremely broad view in separation of powers cases, and will likely demand Senate approval for government agents, like the Special Counsel, who are given broad unsupervised authority to exercise government power.
If the Court accepts Judge Cannon鈥檚 argument, does that mean all of the prior special counsel cases will now be invalid?聽聽聽 While it would mean that all of those decisions brought by outside special counsel were wrongly decided, it does not mean that those wrongly decided cases are now invalid.听 In general, court decisions that become final (by not being appealed, or by affirmance on appeal) are valid and enforceable, even if the decisions are later proved to have been wrong.听 Court decisions must be attacked on appeal, and can generally not be 鈥渃ollaterally attacked鈥� in another court, even if the decisions were wrong.听 See .
An exception to the rule prohibiting collateral attacks applies when the court lacked jurisdiction to issue the decision, but the problem here is not the court鈥檚 lack of jurisdiction but the prosecutor鈥檚 lack of authority.听 The jurisdiction exception should not apply.听 So no, Richard Nixon would not be able to get his Watergate tapes back if Judge Cannon鈥檚 decision is affirmed.听 Sorry Richard.
But even if Judge Cannon鈥檚 reasoning is upheld, her disposition of the case was wrong.听 Dismissal is an extreme remedy that should not be used when well-settled law, that has been reasonably relied on for decades, is overturned, and where the defendants鈥� rights would not be materially harmed by the technical deficiency that previously occurred.听 Rather than dismissing the case, the Court should allow the Justice Department to fix the technical problem.
Professors Calabresi and Lawson argued in their law review article that the appointments clause defect could be easily cured by appointing another 鈥淥fficer,鈥� like one of the United States Attorneys, who has been appointed by the President and confirmed by the Senate, to supervise Jack Smith鈥檚 work on the case.
If that was done, dismissal would only be appropriate if the defendants were somehow prejudiced by Smith鈥檚 wrongful appointment.听 Everything that was done by Jack Smith in the case could have been done by Jack Smith under the supervision of a United States Attorney.听 The technical defect in Smith鈥檚 appointment, which was easily curable, did not prejudice the defendants.听 There is no reason that a United States Attorney appointed to supervise the case now could not ratify Smith鈥檚 past work, and allow Smith to proceed with the prosecution.听 A case prosecuted by Jack Smith under the supervision of the United States Attorney would be like the thousands of cases brought by Assistant United States Attorneys every day in every jurisdiction.听 Without proof that the defendants were severely prejudiced by this technical appointments issue, the extreme remedy of dismissal was totally unwarranted and should be reversed on appeal.
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