After an incredibly busy week, I finally had time today to read carefully Judge Aileen Cannon’s opinion in United States v. Trump. I thought it was excellent, indeed better than most Supreme Court opinions on the Appointments Clauses (although entirely consistent with those opinions). I might be biased given that Judge Cannon’s opinion cited Gary Lawson’s and my law review article on this topic, but she went way beyond that article. President Trump of course was also biased in calling her wise and brave, but in this instance I think he was correct.
Here is the heart of the question that Judge Cannon was considering: Has Congress delegated to the Attorney General either the power to create inferior officers or the power to create the office of Special Counsel, which Jack Smith fills? In her very detailed and textualist opinion, Judge Cannon persuasively shows that the answer is “no.”
Judge Cannon’s opinion shows that each Section of the U.S. Code, which Smith relied on, neither delegates to the Attorney General the power two create inferior offices, nor does it create the office of the Special Counsel. Her argument is irrefutable. I have yet to read a response to her opinion that is remotely as persuasive as the opinion itself.
Judge Cannon also discusses, but does not decide whether an office like the office of Special Counsel, if it existed, would be a Principle or Inferior Office for Appointments Clause purposes. Her discussion of that issue is good as any judicial opinion since one written by Justice David Souter concurring in Edmond v. United States, 520 U.S. 651 (1997).
In addition, Judge Cannon discusses what I think is a very serious Appropriations Power issue in the case. She quite rightly concludes that the Justice Department should lose on both grounds, but she correctly relies only on the Inferior Office Appointments Clause and the statutory arguments before her as deciding the case.
Gary Lawson and I argued in Why Robert Mueller’s Appointment as Special Council, 95 Notre Dame Law Review 87 (2019), that the “Department of Justice should write a new regulation, replacing the 1999 Janet Reno Regulations, specifying that, in the future special counsels shall be appointed from among the ranks of the permanently appointed U.S. Attorneys.”
This would give an Attorney General a list of up to 93 names from which she or he could appoint a Special Counsel. All of the people on that list are Senate-confirmed officers of the United States who could be given the additional power of prosecuting a case outside of their own districts.
Democrats who are concerned by Judge Cannon’s opinion should ask themselves how they would feel, if an Attorney General appointed by a second term President Trump, had the power to create an unlimited number of Special Counsels all of whom were inferior officers as powerful as is Jack Smith?
Sadly, instead of doing that, Attorney General Merrick Garland, a former D.C. Circuit Judge, has chosen to appeal Judge Cannon’s ruling to the Eleventh Circuit.
He has done this with no acknowledgment of the dangers that the Janet Reno regulations pose to the separation of powers or to the system of checks and balances, which the Constitution creates.
