Lawyer who drafted special counsel regulations predicts fate of Judge Cannon's 'cuckoo' dismissal of Trump's Mar-a-Lago indictment

Neal Katyal (pictured left) during July 16, 2024 interview on CNN; (left inset) special counsel Jack Smith spotted after Mar-a-Lago case dismissed (ABC News/screengrab); (right inset) Aileen Cannon testifies virtually during her nomination hearing to the Senate Judiciary Committee in Washington, on July 29, 2020. (Senate Judiciary Committee via AP).

A Supreme Court lawyer and former acting U.S. solicitor general who drafted the special counsel regulations in the late 1990s blasted U.S. District Judge Aileen Cannon’s dismissal of Donald Trump’s Mar-a-Lago indictment as “cuckoo” and all but certain to be overturned on appeal.

During an interview Tuesday, Neal Katyal told CNN’s chief international anchor Christiane Amanpour that he was “surprised” to see that Cannon tossed special counsel Jack Smith’s case on an Appointments Clause violation ground. While Katyal predicted the decision is “not gonna stand,” he indicated that the damage has been done, since the dismissal effectively guarantees that there will be no trial in the Espionage Act case until after the 2024 election.

“Yes, I was surprised. I think, Christiane, this decision is cuckoo for Cocoa Puffs and it’s not gonna stand and be upheld by the court of appeals and the United States Supreme Court,” he said. “It’s certainly going to delay things in this case, and certainly past the election because appeals take time.”

“Donald Trump was accused of taking highly classified and sensitive information without permission, keeping it at his golf club Mar-a-Lago, and then, most importantly, lying about it to federal investigators after he was asked about these documents,” Katyal added, summarizing the allegations of the dismissed indictment. “[T]hat’s what he’s accused of and now the judge comes along and tries to invalidate the prosecutor on a cuckoo theory.”

Noting that challenges of special counsels’ authority have repeatedly flopped in the courts, perhaps most memorably during special counsel Robert Mueller’s Russia investigation , Katyal recounted some legal history.

“I think the most important point about this, Christiane, is eight different judges over the last many years have rejected this exact argument,” Katyal said, including the Trump-appointed judge who presided over the felony gun trial of President Joe Biden’s son Hunter Biden. “And the special counsel regulations that Jack Smith is appointed under, I should say by way of disclosure to all of our viewers, I drafted those back in 1999 when I was a young Justice Department staffer in connection with the entire Justice Department.”

Katyal said that when he and then U.S. Attorney General Janet Reno went to Capitol Hill and briefed the House and the Senate on the regulations, there was no pushback of the kind seen in Cannon’s dismissal order.

More Law&Crime coverage: Mar-a-Lago judge’s obliteration of Jack Smith’s authority sets up 11th Circuit showdown

More Law&Crime coverage: Judge Cannon repeatedly cites Justice Clarence Thomas in Mar-a-Lago dismissal order

More Law&Crime coverage: After ‘careful study,’ judge throws out Trump’s Mar-a-Lago indictment and finds AG Merrick Garland unlawfully appointed Jack Smith as special counsel

“Not a single person from either political party [in Congress] said a word about this kind of idea that the special counsel wasn’t authorized and that’s so because we’ve had special counsels for over a century, since the time of President Ulysses Grant,” Katyal said. “And now this judge comes along, and with the stroke of her pen tries to undo these very serious accusations against Donald Trump.”

Left: Special counsel Jack Smith. Aug. 2023 (AP Photo/Jacquelyn Martin, File). Center: Federal prosecutors say FBI agents seized these materials from Mar-a-Lago. The contents of the documents were redacted with white squares. (Image via an Aug. 31, 2022 federal court filing.) Right: Former President Donald Trump (AP Photo/Susan Walsh).

In an op-ed published in the New York Times on Tuesday, Katyal went a step further than calling the dismissal “cuckoo,” opting instead to call it “deeply dangerous.”

“Judge Aileen Cannon’s decision to throw out serious national-security criminal charges in the classified documents case against Donald Trump is legally unsupported, ignores decades of precedent and is deeply dangerous,” the opening line said, predicting that the dismissal is “quite unlikely to survive the tests of time, or even the appeal Mr. Smith’s office said he intends to make.”

Katyal said it’s “palpably false” that “no law of Congress authorizes the special counsel,” again pointing to the regulations he drafted and to statutes that both Smith and U.S. Attorney General Merrick Garland cited in support of the special counsel’s authority to prosecute Trump.

“The Court of Appeals for the 11th Circuit, which will hear the promised appeal by Mr. Smith, has already swiftly rebuked Judge Cannon on two different matters for her decisions in the Trump case that were well out of mainstream thinking about the law,” Katyal wrote. “This decision is on the way to a third rebuke for her.”

In her order, Cannon said she reached the conclusions that Smith’s appointment and funding violated the Constitution after “careful study,” and she repeatedly cited Justice Clarence Thomas’ solo concurrence in Trump v. United States — the Supreme Court Jan. 6 immunity case — in which the conservative justice expressed concerns that “private citizen” Smith’s appointment ran afoul of the law.

“Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause,” Thomas wrote. “For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if ‘Congress . . . by law vest[ed] the Appointment’ in the Attorney General as a ‘Hea[d] of Department.'”

Dismissing the statutory authorities Garland cited in his appointment order for Smith as insufficient because they did not appear to “create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose,” Thomas raised separation of powers concerns that Cannon shared two weeks later .

“The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers,” Cannon wrote. “The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers.”

In response, the Special Counsel’s Office, through a spokesman who almost never speaks , vowed to appeal to the U.S. Court of Appeals for the 11th Circuit, since Cannon’s ruling “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.”

Smith himself said nothing when spotted after the dismissal.

The post Lawyer who drafted special counsel regulations predicts fate of Judge Cannon’s ‘deeply dangerous’ dismissal of Trump’s Mar-a-Lago indictment first appeared on Law & Crime .