What the judge was thinking and what’s next in Trump documents case

On Monday, U.S. District Court Judge Aileen Cannon dismissed the classified documents case against former President Donald Trump, ruling that Special Counsel Jack Smith was improperly appointed.

Smith’s team charged Trump with illegally retaining classified material after leaving the White House, including national security documents, and obstructing efforts by the government to retrieve them. The case was seen by many as the strongest of the major criminal cases against the ex-president, who appointed Cannon. Smith plans to appeal the ruling.

W. Neil Eggleston served as counsel to President Obama and is now a lecturer at the Law School. He offered his analysis of the Cannon ruling and weighed what’s next in the case in a conversation that has been edited for clarity and length.

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Cannon ruled that the special counsel was appointed improperly. What was her legal reasoning?

It’s a mashup of statutory analysis and two constitutional principles — the Appointments Clause and the Appropriations Clause. She looks at the provisions in the order appointing Smith that set forth the statutory basis for that appointment. She also looks at the statutes and concludes that the statutes do not authorize the attorney general to appoint a special counsel. She focuses on the fact that Smith was not a Department of Justice employee or officer at the time of the appointment — he was working at The Hague. It’s not clear to me why that matters, because today he’s a Department of Justice official. She infuses the analysis with lengthy discussions of the Appointments Clause and the Appropriations Clause.

How would you characterize the decision?

In my view, her reading of the statutory provisions is quite stingy. Two other district courts and the D.C. Circuit have considered this issue — the legality of the special counsel — and they have all rejected it. Cannon is the only judge to find the appointment invalid. The D.C. Circuit has twice rejected a challenge to the use of special counsels — during the Iran-Contra investigation and during Special Counsel Robert Mueller’s probe of Trump. Judge Dabney Friedrich of the District Court in D.C., who is a Trump appointee, tossed aside a similar challenge without a lot of effort in a fairly short opinion in a case involving Mueller, who oversaw the investigation into Russian interference in the 2016 election. Judge T.S. Ellis of the Eastern District of Virginia similarly tossed this issue aside in a case that also involved Mueller. So, the other courts that have looked at this issue have had no trouble with it and have ruled contrary to Cannon.

What are the regulations under which special counsels are appointed?

Special counsels have been around for decades. From the 1970s until the late ’90s there was the independent counsel statute, which provided for a much more independent special prosecutor than what Attorney General [Merrick] Garland authorized in this matter. The Supreme Court upheld the statute in Morrison v. Olson, but it expired in 1999. After its expiration, DOJ implemented its own regulations providing for the appointment of special counsels who possess functions similar to U.S. attorneys. In 2020, in an Appointments Clause case involving the Consumer Financial Protection Bureau, the Supreme Court essentially reaffirmed Morrison v. Olson as a valid exception to a general rule about appointments.

What surprised you most about the decision?

One very surprising thing is how Cannon deals with the Supreme Court precedent in United States v. Nixon. There’s a sentence in that 9-0 opinion which resolves this issue entirely. The sentence says that Archibald Cox, who was one of the prosecutors of Nixon, was appropriately appointed pursuant to the statute. And you would have thought that would have ended this inquiry. Cannon does something I think I’ve never seen a district judge do before, which is that she looks into the history of the Nixon case, decides the issue wasn’t particularly briefed, and as a result determines that a sentence in a Supreme Court opinion that was decided 9-0 was, in fact, “dicta,” which means that it is not binding in subsequent cases as legal precedent. And as a result, she as a district judge was entitled to disregard it. I’ve never seen a district court conclude that a portion of a Supreme Court opinion is not binding; that was a first for me.

In my seminar at Harvard Law School, I teach that portion of the Nixon opinion, and the beginning of it is essentially whether the matter is justiciable and whether the case is properly in the court, partially because it’s an intra-branch fight — it’s two parts of the executive branch that are litigating against each other. It was important to the court to point out that the special counsel was validly appointed and validly in the court, because if they thought he had not been, then the matter would not have been justiciable. The entire first part of the Nixon opinion is really about justiciability.

Cannon was appointed by Trump in 2020. Some observers say that judges shouldn’t be allowed to rule on the person who appointed them. What is your opinion?

That does not trouble me at all. Presidents appoint a lot of judges who then go off and make all sorts of decisions. This comes up in the administrative law context all the time, where district judges and appeals judges must rule on presidential policies. I don’t think most people think that the fact that they’ve been nominated by the person whose policy they’re now reviewing creates an appearance of impropriety. There is a lot of criticism about the way Cannon was handling the matter. I would not go so far as to say that she should not have taken the matter due to an appearance of impropriety.

Smith has said that he’s going to appeal. Can you talk about his likely strategy and whether the case might end up before the Supreme Court?

Smith’s appeal is going to be based on the issues we’re talking about. He’ll say that the judge’s reading of the authorizing statutes is wrong, and that in fact, the attorney general is entitled to appoint non-DOJ personnel to be special counsel. That’ll be the principal argument. Smith will also argue that the infused atmosphere of the Appointments Clause and the Appropriations Clause really has no place in the discussion. It’s a question of whether the statute permits it or doesn’t permit it. He’ll also raise the notion that essentially Nixon has already decided this case.

An appeal in the 11th Circuit would take roughly a year to decide. If Trump is elected president, after his inauguration he will certainly order the Department of Justice to dismiss the federal cases against him. The Department of Justice would then dismiss those cases and there would not be an appeal.

If Trump is not elected, there’s a strong chance that the 11th Circuit will reverse Cannon’s decision. Whichever way the 11th Circuit ruled, I suspect the issues would then be decided in the Supreme Court. I’m not going to predict what the Supreme Court would do.