After a very busy week, I finally had the chance to carefully read Judge Aileen Cannon’s opinion in United States v. Trump. I found it to be excellent, even better than most Supreme Court opinions on the Appointments Clauses. I may be biased since Judge Cannon cited our law review article on this topic, but her analysis went above and beyond. President Trump, biased himself, praised her as wise and brave, a sentiment I agree with in this case.
The central question Judge Cannon addressed was whether Congress has given the Attorney General the authority to appoint inferior officers or create the office of Special Counsel, currently held by Jack Smith. In her detailed and textualist opinion, Judge Cannon convincingly argues that this power has not been delegated.
She demonstrates that the U.S. Code sections Smith relied on do not grant the Attorney General the authority to create inferior offices or establish the Special Counsel position. Her reasoning is solid, and I have yet to come across a response that is as persuasive as her opinion.
Judge Cannon also touches on the issue of whether the office of Special Counsel would be considered a Principal or Inferior Office for Appointments Clause purposes. Her discussion is as insightful as one written by Justice David Souter in Edmond v. United States, 520 U.S. 651 (1997).
Furthermore, Judge Cannon addresses a significant Appropriations Power concern in the case. She correctly concludes that the Justice Department should lose on both grounds, but she focuses solely on the Inferior Office Appointments Clause and statutory arguments in her decision.
In our article, Gary Lawson and I proposed that the Department of Justice should update its regulations to specify that future Special Counsels must be appointed from the pool of permanently appointed U.S. Attorneys. This would provide the Attorney General with a list of qualified individuals for the role.
For those worried about Judge Cannon’s opinion, they should consider the potential consequences of allowing an Attorney General appointed by a second-term President Trump to have the authority to appoint numerous powerful Special Counsels as inferior officers.
Regrettably, Attorney General Merrick Garland, a former D.C. Circuit Judge, has chosen to appeal Judge Cannon’s ruling to the Eleventh Circuit without acknowledging the risks posed by the current regulations.
