Judge Aileen Shoots Her Cannon
A quick look at the classified documents case.
Hey everyone. Like I said on Sunday, I am doing a quick Jackal to go over the classified documents case before I drop another one on Friday. Let’s get to it.
Judge Cannon dismisses Jack Smith’s indictment.
Last Monday, the judge presiding over the classified documents case - Aileen Cannon - dismissed Special Counsel Jack Smith’s indictment of Donald Trump. Spoiler: Everyone knew she was going to do something like this.
The reason we all knew this is because Cannon was especially sycophantic in the early stages of the case (before it even was a case, really) when Smith was preparing his indictment. In fact, she has already been smacked down once by the Eleventh Circuit.
After Cannon dismissed the indictment, Jack Smith quickly filed his appeal. Her decision itself is pretty bad. It is highly technical and almost purposefully tries to confuse the reader. A good lawyer is supposed to write concisely and persuasively and Cannon opted to go for…something else. I would not really call it persuasive as much as it is various legal words on a page.
Her entire reasoning for the dismissal was that Smith’s appointment was unconstitutional because a Special Counsel is a “superior officer” and therefore must be confirmed by the Senate. Smith - like every Special Counsel before him - was appointed by the Attorney General. Cannon’s decision is (almost, more on that below) the first official take explaining this position, which has been circulating in some niche legal circles since the early 2000s. Weirdly enough, it comes from the same people (namely Steve Calabresi) who argued that the President wasn’t subject to the disqualification clause of the 14th Amendment because the President is not an officer of the United States. That argument got zero bites when it went up to SCOTUS, and I am not sure there are five votes there right now who agree with Cannon.
But here’s the rub: We know there is at least one vote on the Court for her position. In the immunity decision from a few weeks ago, Clarence Thomas wrote a concurrence saying that the entire January 6th case should have been dismissed because Smith’s appointment by the Attorney General was unconstitutional. That was all Cannon needed, and she cited to Thomas three times in her decision to justify dismissing the case.
On the other hand, she dismisses all other Supreme Court decisions upholding the validity of the traditionally-appointed Special Counsel. Her reasoning is that because the specific issue itself was never brought before the Supreme Court, all of the other decisions upholding Special Counsels cannot be taken seriously. In United States v. Nixon, SCOTUS held that the President could be subject to subpoenas and “executive privilege” did not protect him from an investigation. In that decision, the Court explicitly said that Special Counsels were constitutional, but Cannon calls all of that “dicta,” or non-binding legal talk.
It is a nonsensical argument best exemplified by her decision to embrace Thomas’s reasoning. According to Cannon:
Language explicitly used by the majority of the Court in a landmark decision = non-binding.
Language used by a single member of the Court in an opinion no one else signed on to = binding.
There is no question that the Eleventh Circuit will reverse her. There are only two other questions:
Will Jack Smith ask the Eleventh Circuit to kick Cannon off the case?
Will the Eleventh Circuit comply?
I am not sure about the answer to either question, but I have some predictions. I am like 30% sure that Smith will ask for Cannon to get the boot. If he does do that, I think there is a high likelihood that the Eleventh Circuit removes her from the case.
I am probably in a minority here, because smart legal people know that Cannon has still not done anything explicitly biased in favor of Donald Trump. After all, she is citing to a concurring opinion by a Justice on the Supreme Court! That probably gives her enough cover to survive a request for removal.
But, I am just a little bit more cynical than that. Everyone in law knows that this is a ridiculous decision. The Eleventh Circuit knows it, Smith knows it, and I bet Cannon knows it as well. It would be a gutsy move by the Eleventh Circuit, but I would bet that they do it because everyone knows Cannon has been especially biased in Trump’s favor.
There is another issue related to this that will play out in D.C., where Trump is defending himself against Smith indictment in the January 6th case. Trump’s attorneys will almost certainly make the same argument there and cite to Cannon’s decision. However, the judge there is Tanya Chutkan and - unlike Cannon - she is not a silly person. Chutkan will issue a decision upholding the validity of Smith’s appointment, which will likely be affirmed by the appeals court there, the D.C. Circuit Court. We will then get what’s called a “Circuit split,” and SCOTUS will have to get involved.
I said above that I do not think there are five votes for Cannon’s position, but I will also say this: After the immunity decision, I really think SCOTUS could do anything. Maybe they will throw out 50 years of precedent established by SCOTUS itself and rely on insane, backwards reasoning to say the Attorney General cannot appoint a Special Counsel. It would have insane, clearly unintended ramifications (are inspectors general superior officers too? Who knows!?), but this is highly partisan Supreme Court.
Finally, if you’ve been reading the Jackal for a long time, I have been saying for over a year that this case would not go to trial before the election. That is obviously still true.
See you all on Friday.