Opinion: Trump’s Judge Cannon Found Her Legal Tutor: Clarence Thomas

Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno

Judge Aileen Cannon seems to have found a perfect way to help former President Trump celebrate the first day of the Republican National Convention. In a decision that reads like it was written by a first-year law student, Cannon gifted Trump the dismissal of Special Counsel Jack Smith ’s prosecution against him for mishandling national security information and classified document.

The timing of the decision which concludes that Jack Smith was unconstitutionally appointed and improperly funded allows Trump to brag about her decision on the same day he formally receives the Republican nomination.

Not one to look a gift horse in the mouth, Trump promptly displayed the same level of legal analysis as Cannon by posting on Truth Social that Cannon’s decision should be a “first step, followed quickly by the dismissal of ALL the Witch Hunts – The January 6th Hoax in Washington, D.C., the Manhattan D.A.’s Zombie Case, the New York A.G. Scam, Fake Claims about a woman I never met…and the Georgia “Perfect”Phone Call charges.”

Trump’s assertions ignore the fact that four of the cases he wants dismissed—including the cases in which he was found liable for raping writer E. Jean Carroll and then defaming her by claiming she lied despite the judicial finding that he committed sexual assault—have nothing to do with special counsels.

Cannon’s sense of timing is about more than just coinciding with Trump’s anointment at the Republican Convention. She has put together a perfect string of delaying actions since the very origin of Jack Smith’s case, starting with her bizarre idea to appoint a special master to review any documents in the case. That idea was struck down by the U.S. Court of Appeals for the 11th Circuit with a tone that some legal observers called a “benchslap.”

Unchastened, Cannon embarked upon a remarkable series of actions in which she entertained nearly every issue brought by Trump’s attorneys by scheduling hearings and, most recently, even invited amicus attorneys to argue before her about legal issues—many of which being the kind other judges might have given short shrift. But the overall effect was to make the special counsel’s case die a slow death by a thousand cuts of delay making it all but impossible for the case to be tried before the November presidential election. It was a startling display of unchecked judicial hubris to have made the prosecution jump through all these hoops of delay only in the end to say: Oh, never mind, I’m dismissing the whole case .

Cannon’s “Trump card,” played brilliantly at the very end of her delaying processes, is not likely to withstand appellate scrutiny and the Justice Department has already authorized Smith’s office to appeal her decision.

A statement issued by the special counsel didn’t mince words in its opinion of Cannon’s decision: “The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel.”

But such scrutiny will not come before the election, which was Trump’s legal defense strategy all along. Cannon’s reasoning is poor and flies in the face of the Justice Department having used some form of a special counsel as far back as the 19th century. In her 92-page decision Cannon devotes some 14 pages just to getting around the problem posed for her by the Supreme Court’s decision in United States v. Nixon that recognized Congress having given the attorney general the authority to appoint a special prosecutor (one earlier version of today’s special counsels).

Cannon struggles to get around this precedent by asking the question of whether the court’s conclusion is part of the court’s holding—which has precedential effect—or mere dicta, which is defined as a comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts.

The distinction between holdings and dicta is a discussion painfully familiar to any first-year law students since they often struggle with this distinction. Cannon appears to have not learned that lesson but given that treating the point as part of the holding would have been an obstacle to Cannon’s conclusion, it is unsurprising that she decides the point was dicta.

The bulk of Cannon’s opinion seems to rest upon the recent concurring opinion issued by Justice Clarence Thomas in the presidential immunity case. There, Thomas issued a separate concurrence to raise the issue of the constitutionality of Jack Smith’s appointment.

It was a concurrence joined by none of the other justices, but that doesn’t stop Cannon from repeatedly citing it in her opinion. As Professor Steve Vladeck told CNN : “It’s hard to imagine that Justice Thomas wrote his concurrence, which addressed an issue that was not before the Supreme Court , with no awareness that it would be used this way.”

This outgrowth of Justice Thomas’s unchecked writing exemplifies why the “Butterfly Effect” in chaos theory—in which small changes can result in unexpectedly large changes—justifies the Supreme Court’s tradition of narrowly defining the scope of issues before it and avoiding deciding issues not before it makes for wise jurisprudence.

While Judge Cannon’s opinion is weak and might even appear to the cynical as a well-timed audition for an appointment to the Supreme Court should Trump win, there is an aspect of her decision that raises the important question of why DOJ needs any form of special counsel.

In the modern era—whether it be in the form of the Independent Counsel statute that was criticized and litigated in the Supreme Court, or its successor, the current Justice Department’s Special Counsel regulations —the notion that we need some form of prosecutor who can stand at some arm’s length from DOJ seems to have become a given.

While the underlying rationale that the attorney general is in an awkward position investigating the president because that’s who appointed them, that commonsense rationale has been lost. First, the use of the regulations is not limited to the president given that the bulk of these types of investigations don’t involve the president as a target of the case. Hunter Biden, the son of the president, comes to mind. Second, the regulations do little to protect DOJ’s integrity. For example, under Attorney General Barr, the appointment of Special Counsel Robert Mueller did nothing to impede Barr from distorting the findings and manipulating the timing of its release.

To Attorney General Merrick Garland, the regulations seem to offer the tantalizing promise of insulating the DOJ from being attacked as a partisan weapon of the administration. But given the daily attacks upon DOJ as being exactly that—not to mention such attacks on DOJ by the House Select Subcommittee on the Weaponization of the Federal Government —it is obvious that such protection is illusory.

Now that illusion has resulted in an enormous waste of time and a lost opportunity to hold former President Trump accountable at a time when it would have mattered most. An attorney general and Justice Department with integrity and courage does not need special counsel regulations to do its job. Conversely, an attorney general lacking integrity will not be reined in by the regulations. As to courage, the lesson learned by the Cowardly Lion in the Wizard of Oz was that his courage did not lie without, but within.

Read more at The Daily Beast.