Judge Aileen Cannon’s decision last week to dismiss the Mar-a-Lago improper-document-handling indictment against former President Donald Trump came as a shock to most observers. Judge Cannon found Special Counsel Jack Smith’s prosecution of the case was constitutionally flawed because his appointment to his post by Attorney General Merrick Garland was not authorized by Congress and was thus unconstitutional. (She also ruled, provisionally, that because no statute authorized his appointment, Smith has been getting paid out of a pot of money that Congress hasn’t designated for paying people like him—which runs afoul of the Appropriations Clause of the Constitution.)
Reaction to the ruling has been forceful. Critics have labeled it “biased,” “unthinkable,” and “a disgrace to the law.” Defenders have pushed back, saying the ruling “reflects an extraordinary amount of effort,” was “lengthy” and exhibited “care.”
All of these cursory labels are pretty unhelpful. The fundamental question is whether the key components of her ruling hold up to doctrinal and analytic scrutiny. In this regard, her critics need to home in (as some have done but most have not) on precisely what is lacking in her reasoning. And defenders need to do more than simply restate her arguments and conclusions; her backers need (in a way I haven’t seen carefully and thoroughly done) to rebut the criticisms directly.
To my mind, while there are many technical legal moves her opinion makes that are unpersuasive, the gravest problem with her opinion is that it fails, in two fundamental respects, to appreciate the larger constitutional picture in which her court, and this case, sits. In particular, her ruling fails to respect the proper institutional role of a district court judge, and it also fails, because it seems ignorant of separation-of-powers big-picture first principles, to appreciate that there are no real constitutional harms—to the executive branch or Congress or Mr. Trump—arising from the particular way Mr. Smith has been appointed and paid. In today’s column I focus on the first kind of near-sightedness; in Part Two of this series I will return to the second.
The first aspect of her myopia concerns what a federal district court judge is supposed to do and refrain from doing. The Constitution requires, of course, that judges take an oath to follow the Constitution—and that means that federal judges are supposed to call things as the judges see them—but that Constitution itself creates a judicial system with a “Supreme” Court and other federal courts that are “inferior (to)” that Supreme Court. For this reason, it is nearly universally agreed upon that all federal courts must adhere to rulings already decided by the Supreme Court (and that district courts must also follow rulings from the circuit courts that have appellate jurisdiction over them), even if those rulings are wrong as a matter of legal interpretation, and even if the higher courts may very well reconsider and overrule those earlier decisions in the near future. As the Supreme Court made clear in Rodriguez de Quijas v. Shearson/American Express, Inc.: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower federal courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”
And it is in this respect that Judge Cannon’s opinion falls short. The Appointments Clause argument against Jack Smith that, according to Judge Cannon, carried the day is that there is no federal statute authorizing the Attorney General to appoint people like Smith, from outside the department, to take on special counsel investigations and prosecutions. But, of course, Smith is not the first special counsel to have been appointed by an Attorney General—special prosecutors like him go back many, many decades. Robert Mueller is a recent high-profile example, but perhaps the most prominent special prosecutor in American history was Leon Jaworski, who litigated against President Richard Nixon to force Nixon to turn over the infamous White House tapes.
In the famous Nixon tapes case, here is what the Supreme Court said about Jaworski’s appointment:
Our starting point is the nature of the proceeding for which the evidence is sought—here, a pending criminal prosecution. It is a judicial proceeding in a federal court alleging violation of federal laws, and is brought in the name of the United States as sovereign. Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U.S.C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.
And these statutes—“pursuant to” which Jaworski (who, like Smith, was hired as special counsel from outside the Department of Justice to investigate and prosecute in the name of the United States) was “appointed”—were themselves invoked by Attorney General Garland to appoint Jack Smith.
So how does Judge Cannon nonetheless conclude that these statutes don’t represent congressional authorization for special counsels? She says this language from Nixon is dicta—that is, non-binding musings, or asides — that didn’t figure into the outcome or rationale of the case from which the language emerged.
As a general matter, the line between dicta and non-dicta can often be blurry, and even statements that are in some respects technically dicta can still be quite constraining. As to the proper characterization of the passage in Nixon, I should note that a three-judge panel (that included both Republican and Democratic Appointees) of the U.S. Court of Appeals for the D.C. Circuit (sometimes called the second highest court in the land) considered the very same argument five years ago and unanimously found the Nixon passage not to be dicta but instead “binding precedent.” Of course that doesn’t necessarily mean than Judge Cannon’s contrary instinct is wrong, but this appellate court ruling ought to cause her to think twice and think carefully about attaching such little (if any) weight to what the Court said in Nixon. Unfortunately, it doesn’t appear that she did that.
Cannon begins her analysis by pointing to the fact that the Attorney General’s authority to appoint Jaworski was not contested by the parties in the Nixon case. Though Jaworski’s brief does lay out the statutory basis for his appointment, and the Nixon Court indeed seems to borrow from the Jaworski brief’s structure in the crucial passage above, President Nixon’s brief does not bring up that issue. But whether the question was contested is not dispositive. The Court can render dicta on things that were fought over in the briefs but that really aren’t important to deciding the case at hand, and it can also, when it wants to, rule authoritatively on questions of law (that are not dependent on contested aspects of a factual record) when it feels it needs to, even if the parties haven’t raised or briefed the question at all. The Court may generally prefer to have full briefing on every relevant question as a matter of good practice, but that fact doesn’t go to whether the Court has exercised what is its power to rule on matters that are not contested in the briefing. Indeed, if the Court in Nixon had ruled, as it could have, even absent briefing, that on their face the statutes invoked by Jaworski there didn’t authorize his appointment and on that basis Nixon was free to ignore Jaworski’s subpoenas, would anyone in the world argue that this conclusion by the Court would be “dicta” that is not binding on lower courts? In short, whether a question was briefed and argued is not the key Judge Cannon makes it out to be to understanding whether something is dicta.
This is itself illustrated by definitions of dicta that she recites in her discussion. The first two cases she quotes to lay out the test for defining dicta say, respectively, that “[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents,” and that when a question
“was not . . . raised in briefs or argument nor discussed in the opinion of the Court, . . . the case is not a binding precedent on this point.” (emphasis added in both). And she quotes a third case for the proposition that a case is not binding “on points that were not there raised in briefs or argument nor discussed in the opinion” (emphasis added). As noted above, in the Nixon case the statutory grounds for Jaworski’s appointment was described in one brief, but much more importantly the Court did discuss and seemingly rule upon Jaworski’s appointment. That’s the crucial point; Smith does not argue that the Court in Nixon implicitly affirmed Jaworski’s appointment, but that the Court explicitly discussed and affirmed the basis for it.
Another argument Cannon advances is that, notwithstanding the meaning of the language in Nixon, the Court has since decided other cases involving the Appointments Clause. This observation, while true, doesn’t help her at all, for two reasons. For starters, recall the admonition from Rodriguez de Quijas—if Nixon’s language forms a precedent with direct application, then that precedent is fully binding on lower courts until the Court overrules itself, notwithstanding recent developments at the Court. And if Nixon’s language doesn’t amount to a precedent with direct application, then intervening developments suggesting a new direction are beside the point. Either way, such intervening developments are irrelevant.
Moreover, as I will explain in more detail in Part Two of this series, the most important intervening cases involving the Appointments Clause deal with appointments that interfere with accountability within the executive branch, and thus violate notions of the unitary executive. Unlike independent counsels and independent agency heads—who are insulated from presidential control or removal—Special Counsel Smith is countermandable and removable by the Attorney General, and is no more independent than any other prosecutor investigating or bringing cases in the name of the United States (such as United States Attorneys, Assistant United States Attorneys, and special prosecutors drawn from among career DOJ ranks). So these intervening cases don’t undermine the passage in Nixon. (And to the extent that some intervening cases might interpret other congressional statutes authorizing appointments, since each congressional statute is unique such cases are also beside the point. In this regard it is helpful to observe that to the extent that Nixon’s passage does constitute a precedent from the Court, it is a statutory interpretation precedent, which is particularly sacrosanct.)
All of this brings us to Cannon’s most aggressive move—her suggestion that the passage in Nixon was not a necessary or essential component in the holdings and outcomes reached by the Court in Nixon. She does this by characterizing the passage in Nixon as merely part of a “prefatory, stage-setting paragraph which merely served to tee up the case-or-controversy analysis that followed”—namely, whether “the case presented a nonjusticiable political question by virtue of the intra-branch nature of the dispute.”
But that divide-and-conquer approach to understanding the Nixon case does not do justice to the basic question presented there, which was whether President Nixon had to comply with the subpoenas of Leon Jaworski, a question that turned entirely on whether Jaworski had lawful authority to issue the subpoenas against him. What Cannon characterizes as “prefatory” and “stage setting,” was characterized by the Court itself as not an amuse bouche to the main entrée, but instead as the Court’s “starting point” in the “inquiry” that courts are required to undertake “to determine whether a justiciable case or controversy is presented.” The Court’s conclusion that “Congress [in particular statutes] has vested in the Attorney General . . . the power to appoint” “a Special Prosecutor [such as Jaworski]” is neither an “aside like statement” nor a “digression” (Cannon’s terms) but the first building-block step in determining whether Nixon could or could not disregard Jaworski’s demands. Thus, the key passage at issue was not just antecedent to Nixon’s holding of justiciability in a sequential sense (coming directly before the Court’s legal conclusion that Jaworski was authorized to challenge Nixon in court), but it was antecedent in a logical and legal sense as well; if Jaworski were not validly appointed, then the regulations empowering him to challenge Nixon in court would also lack validity, and of course Nixon would then win on his argument that the Court cannot insert itself into the picture to enforce Jaworski’s subpoena against him.
This is precisely what the DC Circuit said five years ago in confronting and rejecting the very same “dicta” argument that Judge Cannon embraced:
[Defendant contends], unpersuasively, that the [relevant passage] in Nixon is dictum because the issue whether the Attorney General had statutory authority to appoint a special prosecutor was not directly presented and the Supreme Court did not analyze the text of the specific statutes. It is true that a statement not necessary to a court’s holding is dictum. But [the defendant] misreads Nixon . . . When the Special Prosecutor [there] issued a subpoena to the President to produce certain recordings and documents, the President moved to quash the subpoena, asserting a claim of executive privilege and maintained the claim was nonjusticiable because it was “intra-executive” in character. The Supreme Court held there was a justiciable controversy because the regulations issued by the Attorney General gave the Special Prosecutor authority to contest the President’s invocation of executive privilege during the investigation. In this analysis, the Attorney General’s statutory authority to issue the regulations was a necessary antecedent to determining whether the regulations were valid, and, therefore, was necessary to the decision that a justiciable controversy existed. The Supreme Court’s quoted statement regarding the Attorney General’s power to appoint subordinate officers is, therefore, not dictum.
In this regard, it is telling that the Nixon Court did not qualify its observation that Jaworski was properly appointed by saying something like “the parties do not dispute that,” or “we assume without deciding that.” Instead, the Court said flatly that the statutes in question constitute congressional authorization pursuant to which the Attorney General had acted.
The one case from the Supreme Court that Judge Cannon relies on in her discussion of why she doesn’t have to follow the Nixon language is United States v. Verdugo-Urquidez, where the merits question the Court confronted was whether the Fourth Amendment regulates a search by U.S. officials of non-U.S. persons on soil outside the U.S. The U.S. Court of Appeals for the Ninth Circuit had answered that question “yes,” and in doing so invoked an earlier Supreme Court opinion in INS v. Lopez-Mendoza, where, according to the Verdugo-Urquidez Court, “a majority of Justices assumed that the Fourth Amendment applied to illegal aliens in the United States.”
While the Court explicitly said it could not “fault the Court of Appeals for placing some reliance on the [Lopez-Mendoza] case,” the Verdugo-Urquidez Court also observed that the Ninth Circuit had overread Lopez-Mendoza:
The question presented for decision in Lopez-Mendoza was limited to whether the Fourth Amendment’s exclusionary rule should be extended to civil deportation proceedings; it did not encompass whether the protections of the Fourth Amendment extend to illegal aliens in this country.
The Court then went on to declare that it:
often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, compare, e.g., Maine v. Thiboutot, 448 U. S. 1 (1980) (assuming State is a “person” within the meaning of 42 U.S.C. § 1983) with Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989) (State is not a “person”), and such assumptions — even on jurisdictional issues — are not binding in future cases that directly raise the questions. [additional citations omitted]. Our statements in Lopez-Mendoza are therefore not dispositive of how the Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a claim were squarely before us.
[But e]ven assuming such aliens would be entitled to Fourth Amendment protections, their situation is different from respondent’s. The illegal aliens in Lopez-Mendoza were in the United States voluntarily and presumably had accepted some societal obligations; but respondent [whose search occurred outside the U.S.] had no voluntary connection with this country that might place him among “the people” of the United States.
Three observations about this Verdugo-Urquidez case on which Judge Cannon relies warrant mention. First, the Verdugo-Urquidez Court, even though it felt that it itself (“the Court”) was unconstrained by Lopez-Mendoza, suggested the Ninth Circuit was correct—that is, without fault—to take seriously and rely on whatever Lopez-Mendoza said. This underscores that what counts as binding precedent for the lower courts is different than for the Court itself. (This point is corroborated by the other cases that Verdugo-Urquidez itself cites, all of which discuss how “this Court” is not bound by past statements that were based on assumptions that were not critical to the holding of a case.)
Second, the “assumption” by a majority of Justices in Lopez-Mendoza that the Fourth Amendment applies to undocumented persons inside the United States did not, as in Nixon, take the form of an affirmative statement on the subject. Instead, the Court in Lopez-Mendoza talked about Fourth Amendment violations that “may have occurred” and unlawful arrests, searches, and interrogations that might be “conceded” to have happened. Use of this kind of qualifying language, like instances in which the Court seems to assume but not discuss a particular point altogether, is very different from the Court making affirmative assertions about legal matters—as in Nixon—without qualification.
Third, note that the Verdugo-Urquidez Court ultimately said Lopez-Mendoza was not constraining in any event because the question on which there had been an assumption in Lopez-Mendoza (involving a search on U.S. soil) is legally different from (and not logically antecedent to) the question at issue in Verdugo-Urquidez (involving a search on foreign soil). Thus—and this is quite ironic—the language from Verdugo-Urquidez on which Judge Cannon relies (concerning whether assumptions are binding) was itself not necessary to the outcome of Verdugo-Urquidez and is certainly more assuredly dicta than is the contested passage in Nixon that, as suggested above, was legally and logically tied to the Court’s outcome there.
And on top of all this, there is the fact that for several decades Congress and Presidents have seemed to believe there is a statutory basis for special appointments like those of Jaworski and Smith (that is likely why the question wasn’t contested in Nixon) and have relied on the Nixon Court as having blessed these kinds of appointments. As Neal Katyal powerfully observed in a New York Times op-ed last week, when this special counsel appointment framework was vetted by him and other executive officials with Congress 25 years ago, no one on the Hill pushed back. As noted above, statutory stare decisis, both horizontally (that is by the Supreme Court itself) and especially vertically (by lower courts) is particularly forceful, in large part because if Congress thinks a mistake has been made by the Court in construing one of Congress’s prior enactments, Congress can seek to revise the law to correct the error. But no such effort has been mounted here in recent decades, in spite of the common reliance on the very same statutes that Attorney General Garland invoked to appoint Mr. Smith. If there is one area where the actions of the two political branches can help settle, or liquidate, statutory and constitutional meaning, it is in the area of separation of powers.
To be sure, not everyone (beyond Judge Cannon) sees things the way I have laid out here. Justice Clarence Thomas, in particular, in his separate writing in the Trump immunity case, said that the appointment of special counsels from outside the DOJ raises questions that need to be answered. But notice that none of the other eight Justices joined his musings here. Which is more relevant: that Justice Thomas (who is often alone or in a small minority on the Court in important cases) voiced concerns, or the fact that only Justice Thomas has voiced concerns?
Finally, to the extent that Judge Cannon believes that the Constitution and federal statutes, best read, foreclose Smith’s appointment, and that the Court will someday soon agree, the better, more institutionally appropriate course of action for her to have taken would have been not to dismiss the indictment, but instead to have continued to process the case (in the interests of efficiency) and certified the question of Smith’s appointment to the appellate courts, where such rulings on big questions of law more properly belong. Such a mechanism exists under 28 U.S.C. 1292(b).
In Part Two of this two-part series, I address a different kind of nearsightedness from which Judge Cannon’s ruling also suffers; in addition to not accommodating the entire judicial system of which inferior district courts are one part, Judge Cannon’s ruling fails to appreciate the larger separation of powers regime in which both the Appointments and Appropriations Clause challenges to Mr. Smith’s prosecution are situated. In short, and even if Nixon were not binding, the appointment and payment of Mr. Smith in the way he was appointed and paid do not in any big-picture way deprive the executive branch, Congress, or Mr. Trump of any prerogatives they would have enjoyed had the U.S. Attorney for the Southern District of Florida prosecuted Mr. Trump (which obviously would have been permissible), having been instructed by the Attorney General to heed the advice of special advisor (but not special counsel) Jack Smith every step of the way (which would also obviously have been permissible). Because Judge Cannon’s ruling doesn’t engage why Mr. Smith’s prosecution implicates basic separation of powers concerns (but instead seems to be playing a gotcha kind of game), the opinion looks like a solution in search of a constitutional problem. More on that coming up soon.
