Judge Aileen Cannon’s decision to toss out Donald Trump’s classified documents case by ruling special counsel Jack Smith’s appointment unconstitutional flies in the face of legal precedent, and the law itself, according to a former federal solicitor.
Neal Katyal, who while serving as acting solicitor general helped draft the Department of Justice’s regulations for installing special counsels, challenged the Trump-appointed judge’s ruling in a New York Times op-ed Tuesday. He slammed Cannon’s claim that no congressional law authorized the special counsel’s appointment as “palpably false.”
Cannon’s decision “is legally unsupported, ignores decades of precedent and is deeply dangerous,” Katyal said.
Katyal argued that the regulations on special counsel appointments were drafted under specific congressional laws. In particular, Katyal referred to U.S. Code 28 Section 515, which grants the attorney general, in this case Merrick Garland, the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant[s] to the attorney general or special attorney[s].”
The same law also states that those attorneys can then “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct,” and Section 533 permits the attorney general to commission officials “to detect and prosecute crimes against the United States.”
“These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law,” wrote Katyal.
Katyal wrote that when he proposed new regulations on appointing special counsels to Capitol Hill in 1999, not a single lawmaker challenged the legality of the new rules. Regulation 28 CFR 600 would come to replace the expired Independent Counsel Act with the Office of Special Counsel.
In her ruling, Cannon referred to the expired Independent Counsel Act as the basis for her decision, claiming that the Department of Justice had appointed Smith under the since-defunct provision.
Katyal also said that Cannon’s ruling went against the Supreme Court precedent set in United States v. Nixon, which affirmed the process of appointing the special counsel under both Section 515 and 533.
“Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government,” wrote Justice Warren Earl Burger in the majority opinion. “It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.”
“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,” Burger wrote.
According to Katyal, Cannon attempted to dismiss this ruling as “dicta” because she deemed it irrelevant to the holding of the case. She did, however, manage to cite Justice Clarence Thomas’s solo concurrence in Trump’s immunity case several times. Thomas had suggested in one line that “if there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution.”
