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“A federal judge in Florida dismissed the classified documents case against former President Donald Trump on Monday, siding with defense lawyers who said the special counsel who filed the charges was illegally appointed by the Justice Department…
“Defense lawyers filed multiple challenges to the case, including legally technical ones that asserted that special counsel Jack Smith’s appointment by Attorney General Merrick Garland violated the Constitution’s Appointments Clause because it did not go through Congress and that Smith’s office was improperly funded by the Justice Department. [U.S. District Judge Aileen] Cannon agreed, writing Monday that Garland had exceeded his bounds by appointing a prosecutor without Senate approval and confirmation and had undermined the authority of Congress.” AP News
The left criticizes the decision, arguing that it conflicts with history and precedent.
“The special counsel, [Cannon] writes, qualifies as a ‘principal officer,’ or else the administration wouldn’t be emphasizing his independence. And the absence of an immediate supervisor means he requires approval from the Senate to serve in his role. This contention is refuted both by context and by history…
“The attorney general doesn’t look over the special counsel’s shoulder, and nor should he; the point, after all, is to shelter politically sensitive investigations from, well, politics. But he does have the authority to review major steps in those investigations and to ensure they don’t breach Justice Department protocols. Attorneys general have long been assigning touchy subjects to outside actors — under Richard M. Nixon, George W. Bush and, yes, Donald Trump.”
Editorial Board, Washington Post
“We need a system to police high-level executive branch wrongdoing, and the system can’t be run by the president and his appointees alone. Consider the real-world implication of what Judge Cannon is saying: Under her opinion, Attorney General Garland, not a nonpartisan prosecutor like Mr. Smith, would himself be required to investigate and prosecute the case against Mr. Trump. But Mr. Garland was appointed by President Biden, Mr. Trump’s political rival…
“We’ve had special counsels and special prosecutors since at least the time of President Ulysses Grant after the Civil War… Eight separate judges had already rejected [this] claim… It is true that one Supreme Court justice, Clarence Thomas, recently wrote a concurring opinion in the Trump immunity case questioning the legality of the position of special counsel. No other justice joined that opinion, and even Justice Thomas did not come to the conclusions that Judge Cannon did — he simply raised ‘essential questions’ about the office.”
Neal K. Katyal, New York Times
“Reduced to its essentials, [Cannon] accepted the complaint of Trump’s lawyers that special counsel Jack Smith wields power too independent of the president and attorney general to fit within the statutes Congress enacted to authorize appointment of special federal prosecutors – while Trump himself was publicly saying the very opposite: that Smith is persecuting him as Biden’s puppet.”
Laurence H Tribe and Dennis Aftergut, The Guardian
“Jack Smith could appeal Judge Cannon’s ruling to the United States Court of Appeals for the 11th Circuit. But that process will take months… [Instead] The simple solution is for Atty. Gen. Merrick Garland to treat the classified documents case as a crime like any other, one that doesn’t require a special counsel. He can direct a United States attorney to immediately refile the case in federal court, and under Cannon’s reasoning there would be no constitutional problems.”
Erwin Chemerinsky, Los Angeles Times
The right supports the decision, arguing that Smith’s appointment was unconstitutional.
The right supports the decision, arguing that Smith’s appointment was unconstitutional.
“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.’… 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.”
Dan McLaughlin, National Review
“The special counsels appointed in recent years, from John Durham and David C. Weiss to Patrick Fitzgerald and Robert Hur, didn’t have Mr. Smith’s problem because they were U.S. attorneys who had already gone through the nomination and confirmation process…
“As for Robert Mueller, who also wasn’t a U.S. attorney when he was named special counsel to investigate Russian interference into the 2016 election, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia basically passed on delving into a challenge to his status… [In the case of Mr. Smith] we have the anomaly of a private citizen who enjoys vastly more power than any ordinary U.S. attorney, including virtually unlimited funding with little accountability.”
William McGurn, Wall Street Journal
“[The judge’s] opinion is well-reasoned. It also draws on constitutional history, noting that the Framers because of their ‘colonial experience with the English monarch’ deliberately gave Congress a say in appointments to ‘limit executive aggrandizement.’ By usurping ‘important legislative authority,’ she writes, the special counsel’s office threatens ‘the structural liberty inherent in the separation of powers.’…
“These institutional protections keep each branch of government in its lane and would protect against abuses by a re-elected President Trump. If upheld on appeal, Judge Cannon’s ruling would stop a Trump AG from tapping an outside attorney to investigate Mr. Biden and other political opponents…
“There’s also nothing to stop Mr. Biden and Congress from enacting a law authorizing the AG to appoint a special counsel with circumscribed powers. Or Mr. Garland can hand the documents case to a U.S. Attorney who has been confirmed by the Senate.”
Editorial Board, Wall Street Journal
