Lawfare Daily: Judge Cannon Dismisses Classified Documents Case Against Trump

[Introduction]

Anna Bower: So in Judge Cannon's view, if there is no vesting statute that clearly gives the attorney general the power to do this, basically, in her view, that is a violation of the Appointments Clause.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Lawfare Editor in Chief, here with Natalie Orpett, Lawfare Executive Editor, Anna Bower, Lawfare Legal Fellow and Courts Correspondent, Alan Rozenshtein and Quinta Jurecic, both Lawfare Senior Editors and Michel Paradis, Columbia Law Professor and defense attorney at the Military Commissions.

Michel Paradis: Anytime you're talking about this, you're talking about the government essentially pretending that it is not the one making decisions on behalf of the government.

Benjamin Wittes: Today we're talking about Judge Cannon's order granting former President Trump's motion to dismiss the classified documents indictment. The decision is based on the Appointments Clause. We talked about what Special Counsel Jack Smith may do in response, what the 11th circuit might do, and how this issue would play at the Supreme Court.

[Main Podcast]

Natalie Orpett, get us started with as little rhetoric as humanly possible. What did Judge Cannon do today and on what basis?

Natalie Orpett: Yes, indeed. So Judge Cannon as she made clear in a matter of first impression for the circuit, went through the question of whether Special Counsel Jack Smith was constitutionally appointed such that he can bring the indictment against former President Trump.

She dismissed the case on the finding that he is not, in fact, constitutionally appointed. So I'll just run through the opinion which, as Ben mentioned, is quite, quite long. So she does a background of the case and the procedure. The appointment is divided into two constitutional arguments. The first is the Appointments Clause. The second is the Appropriations Clause. As I will mention, the latter gets much less treatment than the former. So she goes through the principles around the Appointments Clause argument, which involve four different statutes that Jack Smith cited in support of his holding authorities that he says that he does. She does a very careful and thorough textual, contextual, and historical analysis of all four statutes. She looks at the Nixon case, which is, I think, commonly understood to have already upheld the constitutionality of the special counsel --- this is a Supreme Court case, Nixon, that is, --- and finds that actually, it didn't; it was non-binding dictum.

She goes through the question which is relevant to the constitutional argument about whether the special counsel is a principal officer or an inferior officer, and then switches over to the Appropriations Clause and essentially says she did not, does not think that the special counsel is lawfully being paid and is not lawfully conducting itself, but she's not going to fully reach the question because it's unnecessary having already dismissed the case on the basis of the Special Counsel being unconstitutional under the Appointments Clause.

Benjamin Wittes: All right so Anna, give us a little bit of context here. How did this issue arise in this case, and to what extent is Judge Cannon simply channeling what Justice Thomas said in his concurrence in the immunity opinion? Talk us through the relationship between this case and this decision and the immunity decision that the Supreme Court issued the other day.

Anna Bower: Yeah, so this arose on a motion to dismiss in the pretrial proceedings in the classified documents case. As a part of that motion, Trump made both this Appointments Clause issue, and there's two parts that Natalie alluded to in that Appointments Clause issue --- one is just the simple question of statutory interpretation: do any of the statutes that were referenced in Merrick Garland's appointment order of Jack Smith actually grant him the power to create or to appoint a special counsel like Jack Smith to do this investigation, to prosecute this case. And then the second question is whether or not the special counsel, assuming that there is some kind of statutory authority, is the special counsel, a principal officer or an inferior officer under the Constitution because there are different ways or methods that principal officers must be appointed versus inferior officers.

Was that followed here? For example, was there a presidential nomination and then Special Counsel Jack Smith was confirmed with the advice and consent of the Senate. That certainly did not happen here. He was simply appointed without the advice and consent of the Senate. And so Judge Cannon has to run through that analysis as well.

Here, she does not really reach the question. She says, basically, she does what I call a Cannon, where she says, there's all of it.

Benjamin Wittes: Is it a cannon of interpretation?

Anna Bower: It is. It is an Aileen Cannon of interpretation in which you run through the defendant's arguments and say how great they are and how everything is telling you that you should agree with the defense that Jack Smith is a principal officer who should have been appointed with the advice and consent of the Senate.

However, you ultimately decide that the authority is unclear or that maybe there's some authority in the other direction. And so therefore you're going to just leave it to the higher courts to determine what to do on this issue of inferior versus principal officers. That's what Judge Cannon does here.

And then on the Appropriations Clause issue, she does something somewhat similar. She says basically it flows from her statutory interpretation argument that because there's no statutory authority for Jack Smith's appointment by the attorney general, then that means that he has been improperly relying on this appropriation, which violates the Appropriations Clause.

And she kind of says, I don't really know what the remedy would be here, but because I already decided this issue of dismissal under the Appointments Clause, I'm just going to say that basically probably dismissal would be appropriate, but it's up to the higher courts whenever they review this opinion.

So with all of that said, it, it does pretty closely track with Justice Thomas's opinion --- the concurring opinion which only Justice Thomas joined in the Trump immunity case --- again, an issue that was not briefed by the parties, that was not raised by the parties on appeal, but Justice Thomas wrote this concurring opinion in which he basically said on the statutory interpretation issue that he's very doubtful whether there is a statutory authority for the attorney general to appoint the special counsel. He did not so much touch on the principal versus inferior officer argument, other than just to say that he would assume for the sake of his opinion that the special counsel is an officer as opposed to an employee.

But he did not in terms of distinguishing principal versus inferior ultimately decide the issue or go through the different factors that a court would need to go through to determine whether the special counsel is principal versus inferior. And then he also did not really focus on this appropriations issue. He mainly, like Judge Cannon, did focus on the statutory authorization portion of it. Judge Cannon's arguments, however, are much more in depth and hyper, hyper technical. It is, and I, we can get into this a little bit more, but it is truly kind of a beast of an opinion to read because it gets so in the weeds and really over, oversights and does it---

Benjamin Wittes: Are you saying that Judge Cannon has an instinct for the capillaries?

Anna Bower: I am saying that I am not sure that I find her style of judicial opinion writing to be the most compelling form of judicial opinion writing that I have ever read in my life, but I will leave it to others to see if they disagree with that opinion. I think probably most people on this live stream would agree, but anyway, the point is Ben, it very much is in tandem with Justice Thomas's concurrence.

She cites it three times in her opinion often in a string site, but it's worth noting because at the same time that she is citing Justice Thomas's single justice concurring opinion on an issue that was not raised before the Supreme Court in the immunity case, that was not argued by the parties, she cites that several times as persuasive authority, but then when it comes to the Supreme Court's unanimous opinion in Nixon, in which there is a passage that seems to decide this question in favor of the special counsel's office, she spends pages and pages explaining why it is she can be dismissive of that as dicta. The reason being that she says that it wasn't raised or briefed by the parties in that case. So it's really quite interesting. There seems to be a little bit of tension and granted, yes, Justice Thomas does write more words about this question than the Supreme court did in the Nixon case.

But it's quite interesting to see this tension between on the one hand, you have an opinion that one justice raised in a case that did not even bring up these questions, and then you have a long standing, unanimous Supreme Court opinion that seemed to address the question straight on. And she is very dismissive of that.

So that is, I think, answers your question about the background and Justice Thomas.

Benjamin Wittes: All right. Before we go on to the history of this issue, I want to just ask you, Anna, to focus on two brief questions. One is, to what extent is this like Justice Thomas's concurrence, basically saying there isn't statutory authority to appoint regulatory special prosecutors at all, versus to what extent is it an Appointments Clause argument that, Jack Smith is, Jack Smithz   's appointment is defective under the Appointments Clause.

Is it clear to you which this opinion is saying, or not?

Anna Bower: I certainly think that Judge Cannon sees it as an Appointments Clause issue by virtue of their not being statutory--- she… it certainly is a statutory interpretation argument. That is the primary issue that she's dealing with in terms of going through all these statutes.

But the reason that she's saying that it's in violation of the Appointments Clause is because the Appointments Clause, the way that she's reading it, the way that it is set out in the Constitution is basically that any office of the United States that is not already provided for in the Constitution must be established by law.

That is the phrase in the Constitution that she, and that the defense has zoned in on here. It must be established by law, meaning must be authorized by Congress. And so there needs to be some kind of vesting statute that basically gives the Attorney General the power or authorization through a statute to appoint the special counsel.

So in Judge Cannon's view, if there is no vesting statute that clearly gives the Attorney General the power to do this, basically, in her view, that is a violation of the Appointments Clause. And so that's how she gets to this constitutional issue. That's how she gets the remedy that this is a constitutional violation and that the charges should be dismissed because everything Jack Smith has done is ultra vires.

Benjamin Wittes: Okay. Second question, clarifying question. Does she therefore declare all prior regulatory special prosecutors to have been unconstitutional? So she rejects the logic of U.S. v. Nixon. That takes out Archibald Cox and Leon Jaworski. It also takes out Lawrence Walsh, to the extent that he was, he had a concurrent appointment under these statutes in addition to his appointment as independent counsel, takes out Pat Fitzgerald, although he may be slightly different because he was a sitting U.S. attorney, John Durham, Bob Mueller --- all kaput, or is there something distinctive about Jack Smith that makes him uniquely vulnerable here?

Anna Bower: So first I'll say that she says at the very end of her order that she, that this order does not determine any other legal rights or does not apply basically to any other investigations, basically.

But with respect to the actual opinion itself and whether the logic would apply. I think that maybe one thing that she's trying to do here is to distinguish between independent or special counsels who, A) were appointed to different or like special statutory schemes. So people who weren't appointed by reference to 28 USC 515 and 28 USC. So there's that. And then the second part of it is that she makes, when she's doing this statutory interpretation, she seems to be distinguishing, and someone jump in if you think I'm wrong about this, between already retained individuals within the Department of Justice who were already appointed and confirmed with the advice and consent of the Senate that someone like David Weiss, who was the special counsel in the Biden case, but was already previously the U.S. attorney in Delaware and so it already gone through the confirmation process, she seems to interpret these statutes as there's a difference between basically moving someone from a position they've already been in DOJ and in government and they're already retained, and then you're just moving them to a special counsel position versus appointing a private citizen like Jack Smith, who was not in government.

He was in government in a position before he became a prosecutor in the Hague, but he was coming to the special counsel position from an outside government job. And so she seems to think that is a distinction that has gotten this particular special counsel into some trouble.

She also makes a number of different arguments about, she's not really sure how much supervision this special counsel has. And this special counsel might be different from previous special counsels and in terms of the degree of independence or the lack of independence and that kind of thing.

But I think the primary thing is this under the statutory authorization argument is whether or not someone was already in DOJ versus not.

Benjamin Wittes: Gotcha.

Quinta Jurecic: Can I chime in briefly? So I do think that's how I read the opinion as well, and I will say that focus on whether or not the individual had previously been confirmed to a position within the Department of Justice makes a lot more sense if you just go all the way and say, yes, the special counsel is a principal officer, because then you have to go through the Appointments Clause, whereas Canon has boxed herself in. Like she wants to say that there's a distinction there, but she can't quite bring herself to the final stage of saying, “and he's a principal officer.”

And so she ends up putting a lot of weight on this distinction that ultimately may not even matter according to her own rationale.

Natalie Orpett: Yeah, she also would have, though she didn't actually get there, in her opinion it's pretty clear, as she says, that she would find the position unconstitutional under the Appropriations Clause which would apply to any other special counsel, because that relates to what stream of money goes to that office.

Benjamin Wittes: All right, so Quinta, as you and I know, this is an issue with a long history in the Trump investigations, and it is one that did not start with Aileen Cannon, but has been following the Trump investigations along from the beginning. So give us a little short history of the “special counsel is unlawfully appointed” issue as it has presented in Trump's trials and tribulations.

Quinta Jurecic: Thanks, Ben. So I think we will begin our tale on June 4th, 2018, when Donald Trump tweeted, “the appointment of the special councel,” spelled weirdly C O U N C E L, “is totally unconstitutional,” all caps, exclamation mark. And this appears to have been a reference to some writing by Stephen Calabresi, a law professor at Northwestern University and one of the co-founders of the Federalist Society, who at that point was running around making arguments in a variety of forms that Mueller's appointment wasn't constitutional because Mueller was a principal officer and had not been confirmed to his position by the Senate.

This obviously got a fair amount of play if it got to the point where Trump himself was tweeting about it, and that same month we ended up in Lawfare running an article by George Conway addressing Calabresi's arguments from the perspective of someone who was, I think it's fair to say, firmly within the conservative legal movement and explaining why, in his view, Calabresi's arguments really didn't hold water.

Benjamin Wittes: And I will just add, sorry to interrupt, Quinta, that was actually the first public article that George Conway wrote when he, this was while his then wife was still working in the White House, and he had tweeted a few things, and mostly retweeted, but this was kind of George's public entree to the world as an opponent of the president whom his wife was working for, was a fairly detailed article in Lawfare rebutting Steve Calabresi's theory of exactly this point.

Quinta Jurecic: Exactly. And so if you go back and look at that article, I think you'll basically find that Calabresi then, now in 2023, 2024 essentially repeated those same arguments in an amicus brief before Judge Cannon. They're pretty much unchanged and I will say, as I was reading Canon's opinion, I think I messaged Natalie on Slack.

“Oh, interesting. She's just gone, whole hog on Calabresi, except at the very last minute where she pulls up short and says I don't know.” But if you just deleted that one line, it really seems like she's very convinced by Calabresi's --- bad, I would add --- argument that the special counsel is a principal officer and therefore there's an Appointments Clause problem here.

So to, to jump back a little bit, I think it's important to note that Cannon is not the first judge who has weighed in specifically on this issue. There were four judges in the lower courts, in the U.S. District Court for the District of Columbia and in the Eastern District of Virginia who weighed in on the question of the constitutionality of Mueller’s actions. One of them didn't touch the Appointments Clause issue, but three of them did, and all of them basically said, nope, this looks fine to us. I think it's important to note that one of those judges was Dabney Friedrich, who is a pretty conservative judge who was actually herself appointed by Trump.

And that, if you, it's interesting, if you read these judges opinions, they read very interestingly next to Cannon because they essentially take completely the different view. Even Judge Friedrich's opinion, for example, there's a lengthy section where she explains why she thinks that relevant section from U.S. v. Nixon is not, in fact, dicta.

Benjamin Wittes: And do any of them address the statutory authorization question?

Quinta Jurecic: They do and they essentially say, yep, looks good to us. Sometimes, they seem more or less convinced of that. Judge Ellis and Judge Friedrich are a little bit more skeptical, but they agree at the end of the day that, given U.S. v. Nixon, given what is on the books these appointments were authorized.

So then I think it's also important to note --- so one of these cases actually ended up going up to the D.C. Circuit --- and the D.C. Circuit also said, no this looks totally fine to us, including essentially saying, Mueller is an inferior officer, his appointment is fine, and again, under U.S. v. Nixon, which is not dicta, these statutes do represent a sort of a congressional authority to appoint to this position. I will say, if it's important to Judge Cannon, the D.C. Circuit opinion is certainly much shorter than hers. So if we're just going by, total word length, there's a lot less, you know, the Justice Department is a land of contrast. Since the dawn of time, presidents have considered these questions blah, blah, blah, patting it out. But if you read the two of these decisions next to one another, it is really striking how much Cannon is diverging. Just one more note that I think is important. There's been some discussion of whether this ruling by Cannon might lead Trump to try to get the January 6th case in D.C. dismissed. He might try that, but this D.C. Circuit opinion is going to be a problem for him because that is binding law.

Benjamin Wittes: And if the 11th Circuit were somehow to agree with her, the conflict would require the Supreme Court to get involved.

Quinta Jurecic: That's right, yeah.

Benjamin Wittes: Alright Michel, you have actually litigated something close to this very issue, so explain to us how this issue came up in Guantanamo litigation.

Michel Paradis: Sure. So kind of the parallel figure to the independent counsel in the Guantanamo context is a government position called the convening authority. And in ordinary military practice, that's a fairly standard role that's given to commanding officers who basically supervise the court martial system.

I don't want to get too deep into the weeds of the specifics of how court marshals and military commissions work, but by and large, you have an overseer of all of the trial that goes on, and that person operates as the equivalent of the top U.S. attorney as well as a bit of a grand jury as well as a bit of a judge in the case.

And again, in ordinary military parlance, that ordinarily is the commanding officer over the, like the military personnel who's being prosecuted. But in the Guantanamo context, they've done this odd thing where they've essentially hired SES employees. They've basically created SES positions typically for some distinguished people, I don't mean to say that dismissively. Such as like Bruce McDonald, who used to be the top lawyer in the Navy. And so they create this sort of SES, which is just a civil service employee position in the government. And then the Secretary of Defense has basically designated that individual to be the convening authority in his place, because by statute the Secretary of Defense is basically given the job of convening authority, but it says the secretary may designate an officer or official to carry out those duties. And so very similar language in some ways to the special counsel, at least the statutes that have been invoked for special counsel purposes.

And so in the Guantanamo cases we've actually somewhat had some success, I should say, on the Appointments Clause issues generally, but on this one not; in the D.C. Circuit where we challenged the designation of, again, someone who had no other standing in the government, right? They had no pre-existing officer status in the government who had been designated, hired into one of these jobs and then designated by the Secretary of Defense to serve as this Guantanamo court overseer. And we made a number of arguments, many of which are echoed in Judge Aileen Cannon's opinion today. But the key one being that where the Appointments Clause says an office shall be established by law, that you actually have to have a, as well as its mode of appointment, right?

So this, the Constitution basically says the appointment of principal officers shall be vested in the president by and with the advice of the Senate, except that Congress may, and I'm paraphrasing slightly, vest the appointment of inferior officers in the president or the heads of departments, essentially as necessary.

And so we argued that this language was A) too vague to overcome, what is in essence a congressional delegation of authority that has to happen under the Constitution. And secondarily, that the statute Congress didn't act, which is just a delegation statute, didn't, neither created an office of convening authority nor prescribed a mode of appointment. And we lost on that argument in front of, I think, I'm trying to remember who it was Judge Williams, Judge Naomi Rao, as well as Judge Griffith. A fairly conservative panel rejected that.

Benjamin Wittes: Although both Judge Griffith and Judge Williams have been sometimes friendly to Guantanamo detainees, and so

Michel Paradis: Oh, sure. Yeah.

Benjamin Wittes: That's a Republican appointed panel, but an ideologically quite eclectic one.

Michel Paradis: Sure, I would even say the same thing about Judge Rao. I didn't find Judge Rao, but I argued that case, full disclosure, and I didn't find Judge Rao, who ultimately wrote the opinion, like dismissive at all.

In fact, some of the arguments we made under the Appointments Clause she took quite seriously, but ruled that they were foreclosed by D.C. Circuit precedent, specifically the case Quinta mentioned a moment ago in re grand jury investigation. So why do I go through all that long and arduous history?

I think one of the issues that's that this case presents --- how you feel about it is going to come down to what is your attitude about the government acting in the absence of very specific congressional direction --- and we know that currently the Supreme Court has been much more inclined to put the screws to the executive branch when it looks to statutes that don't preclude what it's doing, but don't clearly authorize it either, and then use that to effectuate what are, in very many circumstances, totally reasonable and good uses of the federal government.

This particular issue, this particular kind of complaint about Congress being a little willy nilly with the quote unquote established by law provision of the Appointments Clause has actually been brewing in, particularly in the legal conservative academia, for quite some time.

I would trace it's modern origins, really back to an article or a blog post that Judge Michael McConnell did in 2009 --- then 10th Circuit judge, or maybe had left by that point, but now a Stanford law professor --- raising this question in the context of the TARP. You may remember that one of the things after the financial crisis in 2008 that the Obama administration did was create essentially a TARP money czar who had enormous discretion to essentially just allocate money on behalf of the federal government in terms of providing bank bailouts or mortgage interest rate reductions, etc.

And one of the points that Judge McConnell made in this blog post actually was, that's an awful lot of authority that Congress did not create in terms of vesting into a particular individual who can run around acting as essentially the TARP money czar and for President Obama to unilaterally create that individual and then essentially delegate to them all that discretionary authority creates, a technical violation, perhaps under the Appointments Clause, but also has, I'm sure your audience will not want to hear this, but actually has some reason behind it as well, because one of the, I think, reasonable problems that anytime you're talking about this issue, and I think these special counsel cases, present this issue as well, anytime you're talking about this, you're talking about the government essentially pretending that it is not the one making decisions on behalf of the government.

And so for example, if Jack Smith is doing something, either Attorney General Garland, for that matter, or President Biden can say, that's the special counsel, I have nothing to do with it, my hands are tied, they are able to act without any sort of oversight or restriction on their discretion by higher level authorities in the executive branch.

And to those who find that to be sort of anxiety-inducing as a matter of the separation of powers, what you're really complaining about is accountability. Can the government essentially use these very controversial powers of the government and then just devolve them into offices that they can then claim that's not my problem, I'm not responsible for --- and I'll bring it back to the Guantanamo context just to put a very fine point on it --- I'm not responsible for cutting a deal with the September 11th defendants that takes the death penalty off the table. That's the convening authority, and I have no ability to control what they do.

They're just some person who's been appointed. I, President Biden, or President Trump, or President Trump again, don't have to answer for that at the ballot box because it's this other government employee who's doing that, not me. And to those who are disturbed by that, that is what this aspect of the Appointments Clause is designed theoretically, at least again in the scholarship, designed to address.

The idea that the president can create rocks that the president can't lift. And to the extent that is an accountability problem, that's what the Appointments Clause is supposedly supposed to be doing here.

Benjamin Wittes: All right, so I want bring up the what happens now question, but before I do, let me just throw something at you, Michel, here, which is, it seems to me this argument is much better in the context of Guantanamo, where you have an ad hoc tribunal that has an ad hoc prosecutor, and an ad hoc judge, and an ad hoc convening authority, than it is in the context of a federal prosecution in the normal course that has followed a particular set of practice for 50 years now.

Do you think the Guantanamo case is meaningfully distinguishable from this, or is the convening authority, who by the way is not a prosecutor, roughly comparable in your eyes to Jack Smith?

Quinta Jurecic: Can I add just one additional element to that I was wondering about as you were talking, Michel? The other aspect, of course, is that in your case, the individual in question whose fate was affected by this is someone, imprisoned at Guantanamo.

In Jack Smith's case, the person who the defendant is one of the most powerful, --- or was until recently one of the most powerful people in the world, certainly may be again --- and, has access to an enormous amount of money, resources, basically everything you could possibly want as a defendant. And, in other cases, this isn't true for Jack Smith, but, the Mueller investigation, for example, the person being investigated in that instance actually had the power to fire Robert Mueller.

So I'm curious whether to what extent you think that those kinds of structural distinctions should or shouldn't play into the analysis here?

Michel Paradis: It certainly helps to have a sympathetic defendant. I will tell you that as someone who's represented a number of Guantanamo detainees on issues that have not gone the way people might expect.

And look, and this has come up in some other cases. So Steve Vladeck who many Lawfare listeners may know, actually represented an environmental activist by the name of Stephen Donziger, I think his last name is, who was prosecuted in a essentially for contempt and for obstruction of justice by a special counsel of a kind that was appointed by a federal judge.

And Steve actually litigated that in the Second Circuit, I think, two odd years ago, and maybe three years ago. And actually got some traction on it, at least with Judge Menashi, who was a Trump appointee serving on the Second Circuit at the time, and it went up to the Supreme Court. Cert was denied, but both Justice Gorsuch, joined by Justice Kavanaugh, wrote a concurrence basically saying, hey, this is a much bigger problem than we're giving it credit for.

So this is, again, this is not an issue that's totally out of left field. As much as, I know there are set opinions about Judge Cannon, and there's sort of a presumption of irregularity, perhaps, to a lot of the things she says. This is an issue that has had a certain amount of momentum behind it.

And she's just the capstone of that momentum in a case involving an exceptionally sympathetic, just say defendant, at least in that courtroom. Why, should the sympathies respecting the defendant matter? Should the distinctions, for example, between Guantanamo and President Trump's prosecutions matter?

I think they might, right? I certainly am happy to hear anyone say, yes, you had a much more, much stronger argument than President Trump did in the, even though it was just dismissed by the D.C. Circuit on the same grounds, but I think at the bottom of it all I think a couple, I'll say a couple distinctions that cut both for and against her ultimate opinion.

I think one distinction is that Guantanamo is in some ways sui generis. I think that should, in general encourage courts to be much more skeptical about novel legal issues that arise in the context of it. However, that's not the impulse of most judges who evaluate issues coming out of Guantanamo.

To the contrary, the sui generis character of Guantanamo is normally treated as essentially a thumb on the scale on the side of the government. In most of these cases, because rightly or wrongly, I think judges make the practical assumption that these issues are going to be more or less sequestered or sealed into the Guantanamo context and won't bleed out into the ordinary judicial context.

I don't think that's true, but that there is definitely that impulse there. On the other hand, I do think, both with respect to the evaluation of the issue specific to in front of her, specifically in front of her as well as the remedy she used, I do think she's definitely swinging for the fences on this one.

Like Ben said, this particular interpretation of the statutes has proceeded without major serious question, really until the past 10, 15 years, but not by the courts until this, today, of these particular statutes involving special counsels going at least back to the U.S. v. Nixon, right?

When Jaworski was appointed, it wasn't seen as strange or controversial that he'd be appointed in this way, which shows you a certain amount of executive practice even leading to that that didn't even make it an issue in front of the Supreme Court. But, the current Supreme Court, I think in the immunity decision from a couple of weeks ago has basically said, look, the longstanding practices of the executive branch and the interpretation of federal statutes don't really matter when it comes to these kinds of constitutional issues that we care about or that the Trump prosecutions have tended to present.

I think there are issues that probably cut for and against it, given the more routine and also strange character of the Trump prosecutions. Last thing I'll say is just about remedy. It's not obvious to me; she very briskly swipes aside the remedial questions in Jack Smith's case.

I think in a case like the convening authority case that I raised, it makes a little more sense just because we had a lot of precedent from the military case law side that basically says if the convening authority is… there's something hinky about the convening authority, that's structural error, and you have to vacate the military tribunal on that ground, and that, that's not military commission specific.

It's not obvious to me that the same rules naturally extend to the appointment of a special counsel who's operating as a U.S. attorney. There are a lot of cases involving U.S. attorneys who, in one way or another, something got screwed up with their appointment, or how they took their position, or they overstayed an appointment, things like that, where the courts have not found structural error sufficient to just vacate outright. They've looked to prejudice, they've you know, they've found harmlessness in a lot of these cases. Is that the right remedy? I'm not really fully prepared to say, but it is a pretty aggressive remedy for, for something that is, if nothing else, a good faith error of application, particularly when you had so much executive branch practice that seemed to be endorsed, and was endorsed by lower courts, but seemed to be endorsed by the Supreme Court leading behind it.

So that I think is an area where we'll see, even if the substance of her opinion gets upheld, I wouldn’t be surprised if the 11th Circuit starts looking at the remedial question with a lot more, with a lot more, a finer point than she gets at.

Benjamin Wittes: All right, Alan Rozenshtein, I want to throw some provocations at you and have you respond to them.

The first is, I think this is fabulous. I predicted, I said on at least two livestreams that I was desperately hoping for this to happen, because it offers a clean appeal to the 11th Circuit, that's a government appeal as a matter of right. It's not going up there on mandamus, so there's no heightened, it brings the whole case up so they can lay out her history of, I think it's fair to call it, bias and deranged rulings and maybe get her removed from the case on remand and with all due respect to Michel’s caution that this is a more respectable argument, I cannot count five votes on the Supreme Court for the idea that the Attorney General cannot appoint a special prosecutor and that whole Archibald Cox thing, oops.

So my question to you, Alan, is am I wrong to be pleased by this and say this is actually bad for Trump, though it's a good news day?

Alan Rozenshtein: Yeah I think I pretty thoroughly disagree with you. I think it's, I think it's just, it's a bit too much of a galaxy brain take to say that, when the government's case is thrown out, that's a good day for the government.

Though, I do understand the logic of what you're saying, but I don't think it's going to---

Benjamin Wittes: To be fair, I did say it before it happened. I said, I want this to happen in order for this----

Alan Rozenshtein: And I thought it was a galaxy brain take, too. Ben, I don't know what to tell you, Ben. Let me preface this by saying that I think of everyone in this call, I am least familiar with this issue set.

And I don't just say that to manage and lower expectations as to what I'm about to say. I say that because I think it's actually useful context for how a --- I'm a con law professor, so hopefully I'm vaguely knowledgeable here --- but how a, reasonably knowledgeable, but not super in-the-weeds person sits down and reads this opinion as I did, quickly albeit, this morning, all 98 law review basic pages of it.

And that is to say that I was not convinced by it. I thought it was hyper technical. I thought it clearly tried very hard to bend over backwards to Trump, for Trump. I thought it was of a piece with many of Judge Cannon's rulings all the way back to the, the beginning of this whole saga with the original Mar-a-Lago FBI quote unquote raid, but that at the same time, it did not strike me as an absurd ruling.

It struck me as within legal parameters. It struck me as crafted carefully, right? It has a certain technical scholarly tone. Now I think it's mostly a veneer. I don't think if you push very hard a lot of that goes away, but it's clearly written with an attempt to be careful with an attempt to cover one's bases and you can use a less polite cover term, if you would like. And I think that's all important because when the opinion goes up to the 11th circuit, the question for the 11th circuit is not merely going to be whether to uphold this opinion or to reverse it. And I suspect they probably would reverse it for the reasons that many people have talked about.

But whether the opinion is so egregious that even if you take into account Judge Cannon's previous context and previous actions here, that warrants throwing her off this case. And I'll be honest, I don't see it. I don't see it from the opinion. I especially don't see it given the, I don't even know what you call it, interoffice memo that Justice Thomas sent Judge Cannon in that concurring opinion in Trump v. United States, the immunity decision. There's a law professor, Jack Balkin at Yale, who has a wonderful concept of how constitutional law arguments go from quote unquote off the wall, which is to say crazy town to on the wall, which is to say maybe right, maybe wrong, but within the overton window of respectable constitutional discourse.

And sometimes it's because the argument is good, but a lot of the time it's more sociological. It's because some entity, some elite legal entity who has the power to make arguments respectable, makes that argument respectable. And again, by definition there's no more elite legal entity that has that power than a sitting Supreme Court justice.

What do they say? We're not final because we're supreme because we're final. It's just their job to say what arguments are in and out of bounds. And I think, again, especially once Justice Thomas said that this is an inbounds argument, it's an inbounds argument. And so I think it's just difficult for the 11th Circuit.

Both as a matter of what are the appropriate legal standards for throwing a judge off the case, but also, how does an appellate court want to interact with district court judges who are their colleagues, frankly? Or there's a certain kind of workplace dynamics here as well. How do they want to behave?

And for those reasons, I think it's very unlikely that Judge Cannon will be thrown off. Now, I want to emphasize, I want to really emphasize, I don't agree with the opinion, I don't think it's that good, but the whole point is how does it read? And I think it reads as a kind of, on the extreme end, but fundamentally, normal opinion about very technical constitutional and statutory issues that sure have a long precedent, but courts… there's got to be a first time for everything And that's true whether you're on the left, whether on the right or on the left And so I don't think this will end up with Judge Cannon thrown off.

So what does it mean practically? The government's going to appeal that's going to take a bunch of time because again, these are not trivial issues. They have to be briefed. There's a certain intuitive plausibility to the argument that Judge Cannon is making, which is, as a general matter, the Appointments Clause exists because we want people with really profound influence in the executive branch to be confirmed by the Senate. That's the whole point. And so again, there's a certain facial intuitive plausibility behind the argument. It's not that difficult to explain. The technical issues are formidable, both statutory and constitutional. So there's going to be a multi month delay, and either the 11th Circuit upholds Judge Cannon in case we go to the Supreme Court, or they reverse.

But then it goes back to Judge Cannon. There are like 17 other issues she has that she can throw a wrench in, not to mention the fact that some of the issues that she discussed, the appointment, the actual constitutional kind of appointments issue about inferior versus principal officers, not to mention the funding issue, the appropriations issues, they were technically decided by her, she can take another bite at that apple, all the while we're getting inexorably closer and closer to November, the odds on favor is Donald Trump, if he wins, this whole case goes away, so no, I do not think this is good news to answer your question, Ben.

Benjamin Wittes: All right, second. By the way, I stand by my statement that it's good news.

Alan Rozenshtein: Let's wager a beer over this, Ben, next time I’m in D.C.

Benjamin Wittes: No, so my, here's the bet that I will offer you. This has nothing to do with, if Donald Trump gets elected in November, this case is going away anyway. So here is my bet. If Donald Trump does not get reelected, this will facilitate the actual move to trial in a case that should have been easy to move to trial and has turned out not to be because of Judge Cannon.

That's my proposition. If he gets elected, the case is going away. All right. Second provocation, Alan. This opens up a different possibility, two different possibilities. One is that Jack Smith revisits his venue decision and re indicts this case in Washington, D.C., where there is binding precedent on this question.

And the second is that Merrick Garland himself walks into the Southern District of Florida or the National Security Division. All these people who are litigating these cases are detailees from NSD. So NSD, who are clearly employees of the Justice Department, in their NSD capacity, refile the indictment in Florida, hoping for a different judge.

Are we sure that the remedy here is through the appellate process rather than through a reindictment process?

Alan Rozenshtein: Yeah, so this is, that's a very interesting question and I would like to hear the opinions of others who I think are a little more versed. I was a very, only very briefly a federal prosecutor and doing much simpler cases than this.

With respect to the venue question, part of my understanding of the venue issue is that you have to charge the thing in the place where it happened. So by charging, by putting venue in Florida, the main conduct that you are charging is what Trump did once he got to Florida, when of course he was no longer the president.

If you charge it---

Benjamin Wittes: No, but you could also charge it, he caused a letter to be sent to the National Archive. He caused a person to respond falsely to a subpoena issued by a grand jury in Washington. So maybe as federal prosecutors keep lining up to tell me, they always use the exact same language.

Venue, Alan, is a flexible concept.

Alan Rozenshtein: So maybe, right? And again, I don't want to take a definitive position on this. If that's possible, then the question is why didn't he do it in the first place, given that all these issues are resolved in D.C. already, and he knew he wouldn't have to deal with Judge Cannon, right?

So there's presumably a reason he did venue in Florida, and there's an interesting question of whether he can switch it now, right? As to whether he can go and refile this case, again I'm not sure. I just don't know what the details are here. What's, I think, complicated for Attorney General Garland is the reason he picked Jack Smith, the reason he picked his special counsel was that this was if there was ever a case for a special counsel, it was this, right?

Like the whole point was that you were prosecuting the main political opponent of your boss, the president of the United States. So he doesn't have to, I guess he could just go and ask NSD to do it, but then that raises the question of, but you did a special counsel the first time.

Benjamin Wittes: Well we let the special counsel do all the work.

We let the special counsel do make the charging decisions. We pursued it under the special counsel until a federal judge told us that we couldn't. And then we filed the exact same indictment under the normal Justice Department process because that's what the federal judge made us do.

Alan Rozenshtein: Or perhaps, but then you are leaving in place an extremely high profile district court opinion saying that at least this and perhaps many other special counsels are unconstitutional or at least ultra vires beyond statutory authorization.

Benjamin Wittes: All right. Anna Bower, do you have thoughts on this? How does Jack Smith slash Merrick Garland respond?

Anna Bower: Yeah, putting aside the question of changing venue, I think that what Alan just mentioned is one of the big problems is that let's say that you are Merrick Garland, you walk into somewhere in the Southern District of Florida and reindict that one of the issues is that you're leaving this order in place, which A) I think Merrick Garland does not think is in the interest of the United States or the Department of Justice to leave this order in place without appeal. But B) the way that Judge Cannon crafted it is that she's saying that anything that happened from November of 2022 when Jack Smith was appointed and onward was unlawful because it was ultra vires. And that means that you then, if you're leaving this in place in the Southern District of Florida.

Yes, you do have the things that were obtained from the Mar-a-Lago search, but then this is something that Natalie and Michel could address better than I could. But then you get into this weird thing where all this grand jury activity that took place after November of 2022, any kind of additional searches or evidence that is obtained, all by someone who under Judge Cannon's opinion was doing this work unlawfully you have these issues of suppression that might arise from that.

And so it, then it's do you have to, basically redo a bunch of the investigative work that Jack Smith did from November 2022 onwards in order for the indictment to be lawful, that kind of thing. I will just generally say to you before I hand it off to someone else, I, Ben am in agreement with Alan that this case is not going to be reassigned whenever it goes up to the 11th circuit.

I think that yes, this is one more thing adding to the body of evidence that Jack Smith maybe needs to have to ultimately one day seek the reassignment of Judge Cannon. But I think if he tries it whenever it goes up based on this opinion, I really think that Justice Thomas’s concurrence, yes, it's just one single justice, but I think that sealed the deal that the 11th Circuit Court of Appeals is absolutely not going to remove and reassign this case when the judge's opinion tracks very closely with that of a sitting Supreme Court justice and a justice who, I will mention, for example, Bill Pryor, who is the chief judge on the 11th Circuit Court of Appeals, often is very aligned with Justice Thomas's opinions.

And as we've seen, Ben, in the Supremacy Clause immunity context, for example, the 11th Circuit sometimes does find these hyper technical statutory language arguments appealing. I'm not, I'm really just not convinced that this is going to lead to her immediate reassignment, though in the long term it may be a good thing.

Benjamin Wittes: So I am, just to be clear, my sense that this is a good thing is not based on the idea that this will lead to her reassignment. It's based on the idea that they needed to get this out of her courtroom and to the 11th circuit, because at a minimum, there needs to be a major… she's ready for the next big Bill Pryor or someone else slap down saying you, you can't be running the case like this.

And whether that results in reassignment or just a another dressing down by the 11th circuit, it would be a good thing either way. Michel, you get the last word. Where is all this heading?

Michel Paradis: Oh, I can't predict the future, but a couple of concepts to keep an eye out for as the government figures out what it's going to do next.

One is the concept of ratification, which is recognized and largely embraced in the Appointments Clause, where if you get someone who, if there's a finding that someone is improperly appointed, you can fix all of that by having someone who is properly appointed come in and wave a magic wand and saying, essentially, I adopt everything that they've done. How exactly it's going to shake out in this context, I think I would need more granularity, but it's definitely the next thing to look out for. And if and when something like that does happen, I would expect the government to appeal this decision, and then after ratifying, move to have the 11th Circuit vacate under something called Munsingware vacatur, which basically is a way of getting a lower court decision that you don't like thrown out as long as it's moot.

And so I would say---

Benjamin Wittes: There was a big Munsingware case at the Supreme Court this year.

Michel Paradis: That's right. Yeah. It's something the Supreme Court loves to do, as you might expect. It's not as common in the district court context, but it does happen quite a bit. So I, those would be the two concepts to look out for as the government tries to essentially fix this problem potentially without getting this issue up in front of the Supreme Court.

Cause unlike Ben, I'm not confident that you don't have five votes. I can count four pretty fast. And then the question is really whether or not the chief or Amy Coney Barrett embraced this idea.

Benjamin Wittes: All right, we are going to leave it there. Michel Paradis, Quinta Jurecic, Alan Rozenshtein, Natalie Orpett, and from the Mar-a-Lago bathroom, Anna Bower. This is from the Mar-a-Lago ballroom, Benjamin Wittes, signing off.

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