The initial impulse when reading Judge Aileen Cannon's pseudo-academic book 93-page dismissal The point of the classified documents case against Donald Trump is to enumerate the errors and legal overreaches that demonstrate his brazenness and the likelihood of his reversal. The opinion, which dismisses the case on the dubious premise that special counsel Jack Smith was improperly appointed, could serve as target practice for any first-year law student who has learned about statutory interpretation and precedent — principles that Cannon shreds as he works to make the case go away.
But that conventional critique isn't really adequate for Cannon's unconventional and shameful work. Analyzing the case in terms of the nuances of special prosecutor law or Cannon's indifference to United States vs. Nixon is to miss what is right in front of our noses.
It is more useful and illuminating to think of the dismissal as the first judicial decision of Project 2025, in which the rule of law takes a backseat to the preeminent principle of loyalty to Trump.
Cannon has been operating according to that principle with varying subtlety ever since he accepted Trump’s invitation in 2022 to turn a Fourth Amendment pedestrian challenge to the search at his Mar-a-Lago estate into an outright illegal case. construction blockage.
It is an illustration of the gulf between normal presumptions of judicial propriety and Cannon's close oversight of the case that it took so long for many, including me, to fully accept the only hypothesis that is consistent with his continued undermining of a clear-cut criminal case: that this is entirely a question of loyalty, not law.
That said, some aspects of the opinion itself demand a response. The first is that, despite Cannon's repeated invocation of the Constitution's longstanding structural principles, appointment clause And the separation of powers, impeachment, does not even present such a constitutional analysis. Rather, it turns on a rather trivial question of whether any of the various laws authorize the appointment of a special prosecutor as the Constitution clearly allows.
Second, the dismissal owes a huge intellectual debt to one person, Justice Clarence Thomas, who raised the issue in his opinion concurring in the Supreme Court's recent ruling on presidential immunityNot content with fully joining the court’s impressively broad majority opinion, Thomas also chose to “write separately to highlight another way in which this process may violate our constitutional structure,” advancing the same theory espoused by Cannon.
Yet, despite Thomas’s well-known penchant for absolutist and first-principle views, even he stopped short of endorsing the theory Cannon espouses, noting with uncharacteristic vague hesitation that he was “not sure” whether Smith’s position was “established by law.” And yet that armchair guess by a single justice was enough for Cannon to defend.
Third, Cannon flatly contradicts the Supreme Court's unanimous decision in United States v. Nixon, which held that Congress gave the attorney general “the power to appoint subordinate officers to assist him in the performance of his duties.” His solution to this problem is to declare this oft-quoted statement a “dictum” or “passing comment.”
What now? Some observers have viewed Cannon’s nuclear settlement as a positive development, as it will provide a clear basis for the 11th U.S. Circuit Court of Appeals to reverse her decision, as well as a likely Justice Department motion to recuse her. And as long as the circuit court does not share Cannon’s disregard for established law, a recusal should be in the offing. Recusal is a much more serious move, but given Cannon’s misadventure with the search warrant and the reported refusal of her fellow judges to accept pleas for her to step down from this case, I think there is a good prospect of that remedy.
Another possibility is that federal prosecutors will try to file the case again in a different district. Either way, I suspect we've seen Cannon's last decision on the matter.
Of course, having made a big deal of not deciding any issues in the case (there are nine fully argued motions on which Cannon has not ruled), the judge issued her dismissal at an impeccable time for Trump’s purposes. The appeals court likely won’t have time to reverse the decision before the election, which would ensure that Trump retains the political benefits of the dismissal for as long as he needs them. And if Trump wins the election, he’ll simply order the Justice Department to dismiss the case.
There is no escaping the conclusion that Cannon has violated her oath to do justice without regard for the people. Her earthly reward? It would certainly be consistent with Trump’s promised approach to a second term if she were elevated to a higher court. She may well find herself standing alongside her new colleagues on the circuit court that soundly reversed her decision. How will they be able to shake her hand?
Harry Litman is the host of the show Podcast “Talking to the Feds” and the “Speaking of San Diego” Speaker series. @harrylitman
