In Part One of this series, I analyzed what I think was a profound failure by Judge Aileen Cannon, in dismissing the improper-documents-handling indictment by Special Counsel Jack Smith, to properly appreciate and operate within the bounds of federal district court power. In particular, her tunnel vision caused her to improperly ignore relevant rulings already reached by courts higher up the ladder, in particular actions and statements from the U.S. Supreme Court in the famous United States v. Nixon case. A district court is bound to follow such precedents that have direct application, even if the district court judge believes 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.
In this second part, I put to one aside the controlling passage from Nixon and assume that the Court had never uttered such language. Even then, I find Judge Cannon’s opinion to be wrongheaded and myopic, in that it fails to take in the larger constitutional framework in which the appointments clause (and the appropriations clause) challenge was levied.
Readers will recall that Judge Cannon held that Mr. Smith’s appointment as Special Counsel, brought in from outside the Department of Justice, to investigate and prosecute matters related to the Mar-a-Lago documents episode, runs afoul of the Appointments Clause of Article II, which provides:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments (emphasis added).
Even accepting for the purposes of the challenge that Mr. Smith is an “inferior” officer (rather than a “principal” officer or a head of a department), Judge Cannon found that his appointment by Attorney General Merrick Garland was unconstitutional because there was no “law,”—i.e., statute—by which Congress had vested appointment power in the Attorney General to appoint him. Judge Cannon parsed each of the statutes Attorney General Garland had relied on in his order of appointment, and found that none constituted congressional authorization for the appointment. (For these reasons, she also found that Mr. Smith was being compensated without the necessary congressional appropriation.)
The Appointments Clause serves many constitutional values. By requiring officers who are appointed by the President alone or by the Heads of Department to be “inferior,” the clause ensures that there is accountability within the executive branch. Such lack of intra-branch accountability plagued the now-defunct Independent Counsel Act, under which Alexia Morrison had investigated Ted Olsen in the (in)famous Morrison v. Olson case in 1989 and Ken Starr investigated former President Bill Clinton in a variety of matters. Although the Court upheld the independent-counsel act in Morrison, there is pretty general agreement that, given the experience with the law in the 1990s and in light of more recent Supreme Court cases (e.g. Edmond v. United States, Free Enterprise Fund v. Public Company Accounting Oversight Board, and Seila Law LLC v. Consumer Finance Protection Bureau), the act would not easily survive review today, because having courts appoint prosecutors (as was the case under the act) and having prosecutors operate “independently” (that is, free of the prospect of removal or countermand) of the President and Attorney General impermissibly impairs accountability within the executive branch, which is for the most part a “unitary” system of top-down ultimate control.
Cases like Morrison also illustrate that respecting the strictures of the Appointments Clause can protect not just executive branch authority, but can also safeguard the liberty interests of individuals. Indeed, all separation of powers and federalism principles are just means—and not ends in themselves. But by dividing power within various governmental institutions and preventing some organs of government from invading the province of others, the Constitution’s framers sought to maximize personal liberty and minimize the threat of government tyranny. So it is no surprise that, in the case of the independent counsel, people like Ted Olsen and Bill Clinton could make out forceful cases that they were being victimized by an “independent” prosecutor who was neither accountable to, nor controllable by, any higher-up who in turn had to answer to the American people.
As Judge Cannon rightly pointed out, protecting the executive branch and protecting individuals aren’t the only objectives of the Appointments Clause. As she wrote: “The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers.” By insisting that Congress sign off on the method of appointment for inferior officers, the clause protects Congress’s authority and discretion to determine what is right or, in the words of the clause, “proper.” Making sure that the executive branch doesn’t evade accountability to Congress is thus a clear goal of the clause.
All of that brings me to the biggest criticism I have of Judge Cannon’s opinion. She nowhere identifies, much less elaborates on, how the appointment of Mr. Smith impairs accountability within the executive branch, accountability to Congress, or the rights of individuals like Mr. Trump. Her essential claim in the opinion is that because there is no statute that authorizes the appointment of Mr. Smith as such, the executive branch has improperly circumvented Congress’s constitutionally prescribed central role in deciding whether outside special counsel like Mr. Smith should be empowered (and paid, pursuant to the appropriations clause, a provision Judge Cannon invokes but ultimately doesn’t rely on as a basis for dismissing the indictment). But putting all the technical problems with Judge Cannon’s legal reasoning, the overarching flaw in the ruling is that the executive branch/Department of Justice here (unlike in Morrison, where independence differentiated Alexia Morrison from other DOJ personnel) can undeniably engage and pay Jack Smith to effectively call the shots in the document-handling matter.
To see this, imagine Garland hired Smith as a DOJ employee “consultant” (terminable at Garland’s will, just as Smith is now), and paid him out of discretionary funds, of which there are many, that are undeniably appropriated. Mr. Smith would not be representing the United States in court and would not as a matter of statute or regulation have any legal power to do anything. There is no doubt that he would not be an officer at all (in the same way that Assistant United States Attorneys are not officers), and that AG Garland could hire him under statutes that give him general power to hire employees. (One such statute is 28 U.S.C. §533(4), which explicitly says the “Attorney General may appoint officials to conduct . . . investigations regarding official matters under the control of the Department of Justice. . . as may be directed by the Attorney General.” While Judge Cannon found this provision not to authorize the appointment of “officers”—since she ungenerously determined that “officials” here does not include “officers”—even she conceded the provision permits engagement of “nonofficer employees.”)
Imagine further that Attorney General Garland then directed the United States Attorney for the Southern District of Florida (over whom Garland and the President have control under any self-respecting unitary executive theory) to investigate and pursue the case against Trump. Again, no problem with that, even under Judge Cannon’s reasoning. The USA for Southern Florida is already a DOJ employee and has been nominated by the President and confirmed by the Senate.
Now, imagine further still that Attorney General Garland has told the U.S. Attorney to pay strict attention to and follow Smith’s legal advice and strategic suggestions, to a tee. Indeed, imagine Garland instructed the USA to notify him prior to any action taken that diverges from Smith’s input.
I don’t see any conceivable problem with this setup, which Congress has undeniably authorized, under either the Appointments Clause or the Appropriations Clause, even though Smith’s strategy and legal vision are guiding the litigation. And yet if this setup is ok, why is the current setup constitutionally problematic? Neither the executive branch, nor Congress, nor Trump is any worse off under the current regime than would be the case under the scenario I posit. Indeed, given that current setup involves more transparency about the importance of Smith’s role (transparency that is not required of executive branch operations generally), the alternative scenario I describe is arguably worse from a democracy standpoint. And yet it would be allowed under the Constitution and current statutes.
The point here is not simply that, going forward, Attorney General Garland could reinstitute the prosecution of Trump by other means. The point is, that being the case, why should Cannon have construed the statutes that were invoked by Garland as a basis for appointing Smith so uncharitably? Cannon deflected some of those statutes seemingly because they didn’t include the word “appoint,” and yet the Appointments Clause nowhere says that Congress must expressly vest the appointment of inferior officers in the Heads of Departments for that appointment power to exist. (As Chief Justice John Marshall noted in McCulloch v. Maryland, the Constitution’s drafters could, in enumerating congressional power, have included the word “expressly” to impose a requirement of specificity.) In all the other places the Constitution says that Congress “may by law” do something, we do not insist that Congress, in exercising that power, use any Simon-says language. Indeed, in the seminal Obamacare case, the Court, per Chief Justice John Roberts, said that Congress can exercise taxation powers without labeling a revenue-raising measure a tax or levy at all.
So putting aside Judge Cannon’s decision to dismiss the indictment (which seems remedially disproportionate even under her own reasoning given that the case could be refiled under Attorney General Garland’s direction by another representative of the United States), Judge Cannon’s opinion nowhere explains why the particular course General Garland took in appointing Mr. Smith really violates the rights or prerogatives of any person or institution, given that Congress has already given the Attorney General the legal capacity to do effectively what he has done here. If Congress doesn’t want to afford the Attorney General the leeway and flexibility he currently enjoys under the overall statutory scheme, Congress may by law change that. Until that happens, courts should be wary to interfere.