After an extremely busy week, I finally had the time today to carefully read Judge Erin Cannon’s United States v. Trump. I think it’s very good, indeed better than most Supreme Court opinions on the Appointments Clause (although entirely consistent with those opinions). I may be biased given that Judge Cannon’s opinion cited Gary Lawson’s and my law review articles on the subject, but her content goes well beyond that article. President Trump is certainly biased when he calls her wise and brave, but in this case, I think he is right.
This is at the heart of the question being considered by Judge Cannon: Did Congress give the attorney general the authority to create lower officials or the authority to create the office of special counsel to be chaired by Jack Smith? Judge Cannon convincingly demonstrated in her highly detailed and textual opinion that the answer is “no.”
Judge Cannon’s opinion showed that each section of the U.S. Code relied upon by Smith neither delegated authority to the attorney general nor created a subordinate office or created an office of special counsel. Her argument is irrefutable. I have yet to read a response to her point that is nearly as convincing as the point itself.
Judge Cannon also discussed, but did not decide, whether an office like the Special Counsel’s Office, if it existed, would be a principal or subordinate office for purposes of the Appointments Clause. Her discussion of the issue is as good as any judicial opinion, as an opinion written by Justice David Souter agreed Edmund v. United States, 520 U.S. 651 (1997).
Additionally, Judge Cannon discussed what I consider to be a very serious appropriation authority issue in this case. She was right to conclude that the Department of Justice should fail on both counts, but she rightly relied solely on the Lower Office Appointments Clause and the statutory arguments before her to decide the case.
Gary Lawson and I argue Why Robert Mueller was appointed to the special committee95 Notre Dame Law Review 87 (2019), “The Department of Justice should enact a new regulation to replace the Janet Reno Regulation of 1999 clarifying that special counsels shall henceforth be appointed from the pool of permanently appointed United States Attorneys.”
This would provide the attorney general with a list of up to 93 names from which she or he could appoint a special prosecutor. All those on the list are Senate-confirmed U.S. officials who may be given additional powers to prosecute cases outside their own districts.
Democrats concerned about Judge Cannon’s opinion should ask themselves how they would feel if President Trump appointed an attorney general with the power to create an unlimited number of special prosecutors, all of whom were junior officials as powerful as Jack Smith.
Sadly, Attorney General Merrick Garland, a former D.C. Circuit judge, did not do this, choosing instead to appeal Judge Cannon’s ruling to the Eleventh Circuit.
He did so without acknowledging the danger the Janet Reno statute posed to the separation of powers or system of checks and balances established by the Constitution.
