Praneet Thakar
Judge Aileen Cannon’s decision to drop serious national-security charges against Donald Trump lacks legal basis, ignores established rules, and is risky. She ruled that appointing special counsel Jack Smith violates the Constitution’s rules on appointments, which undermines trust in our institutions and the fairness of important investigations, especially when people are relying on them.
This decision is unlikely to stand up to scrutiny over time, particularly given the intention of Smith’s office to appeal. However, it will contribute to further delays in a case that has already progressed slowly under Judge Cannon’s supervision. These delays make it almost certain that the case will not be heard by a jury before Election Day.
Judge Cannon’s assertion that no law authorizes the appointment of a special counsel is fundamentally incorrect. The regulations for appointing special counsels were created under specific congressional laws that provide clear authorization for such appointments. These legal frameworks have been in place for decades and are well-established.
Since 1966, Congress has enacted Section 515, which gives the attorney general the authority to appoint attorneys as special assistants or special attorneys to the attorney general. This provision explicitly allows these appointed attorneys to conduct any legal proceedings, whether civil or criminal, just like other U.S. attorneys.
Additionally, Section 533 allows the attorney general to appoint officials to detect and prosecute crimes against the United States. Attorney General Merrick Garland cited these specific sections when appointing Jack Smith as a special counsel. Unless Congress chooses to repeal these laws, they remain in effect and provide the legal foundation for such appointments.
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