by Noah Feldman
You don’t need a legal expert to tell you that Judge Aileen Cannon’s decision striking down the appointment of Jack Smith as special counsel to investigate former President Donald Trump is terribly wrong. What’s less obvious is that Cannon’s opinion isn’t just the work of a far-right wingnut. Rather, Cannon’s decision is a second-rate pastiche of the kinds of decisions the conservative Supreme Court has been issuing as part of its constitutional revolution.
Put another way, Cannon isn’t a loose cannon. She’s a soldier in a much bigger legal battle to rewrite constitutional law being led by Justices Clarence Thomas and Samuel Alito. The conservative legal movement, exemplified by the Federalist Society, has long made it a priority to appoint conservative judges to as many judicial posts as possible, and they’ve done so in partnership with Republican presidents like Trump and Senate leaders like Mitch McConnell. This gave Trump a large number of appointments during just one term in office — Cannon among them.
Such lower court judges aren’t merely emboldened by the current court’s conservative hardliners. They try to emulate them.
To see how Cannon’s opinion followed a script written at the Supreme Court, consider its most outrageous element: It directly contradicts explicit Supreme Court precedent that goes back to the Nixon v. U.S. decision from 1974. That precedent isn’t obscure. It’s famous. Decided unanimously by the Supreme Court, it held that Nixon couldn’t hide behind executive privilege to withhold the Watergate tapes from special prosecutor Leon Jaworski. It’s no exaggeration to say that this was the decision that led to Nixon’s resignation.
Nor is there any doubt about what the Supreme Court said in the case. Reciting the same statutes that underlie the current special counsel regulations, the justices said that “Congress has vested in the Attorney General the power to … appoint subordinate officers to assist him in [criminal litigation]” and that “the Attorney General has delegated the authority” “to a Special Prosecutor” pursuant to regulations. Then the unequivocal punchline: “So long as this regulation is extant, it has the force of law.”
So how, you may well ask, could a lowly district court judge announce that these sentences — written by the Supreme Court in one of its most prominent cases — are constitutionally wrong? Cue the current conservative constitutional revolution, which is all about overturning 50-year-old precedents. In his concurrence in the recent Trump immunity case, Thomas questioned the U.S. v. Nixon precedent for giving only “passing reference” to the relevant statutes and failing to analyze their text. Cannon took this as a signal to treat the precedent as passé.
In a world where the Supreme Court overturns three or four previously inviolable precedents each term, the idea that established precedent must be followed by the lower courts loses its meaning.
Even Cannon’s techniques of reasoning, weak as they were, are taken from the playbook of the conservative justices. She based her opinion on two clauses of the Constitution, one known as the appointments clause and the other as the appropriations clause. The appointments clause says, as relevant here, that Congress may give the president or other Senate-confirmed officials the authority to appoint subordinates who don’t have to be Senate-confirmed — like the special counsel. Reading that provision hyper-literally, Cannon insisted that Congress must make a clear statement authorizing each and every such appointment; then she read the statute cited by the Supreme Court in 1974 hyper-literally and concluded that, since it didn’t mention the special counsel, it violated the appointments clause.
In this, Cannon was apparently inspired by a 2021 Supreme Court decision, U.S. v. Arthrex, in which the conservative majority held that the appointments clause was violated by allowing the decisions of administrative patent judges to stand without review by higher-ups in the Patent and Trademark Office — the first time that the court had ever invalidated a law passed by Congress authorizing appointments under the appointments clause.
As for the appropriations clause, that was the basis for the decision by the U.S. Court of Appeals for the Fifth Circuit to overturn the funding structure of the Consumer Finance Protection Bureau — a decision so extreme that in May, the Supreme Court reversed it over a dissent written by Alito and joined by Justice Neil Gorsuch. I wrote at the time that, if Alito’s logic had swayed the other justices, the ruling could have undercut the power of the Federal Reserve — and consequently the entire global financial system.
The takeaway is that what Cannon did in her decision is no coincidence. True, she didn’t do it especially well. She is not a member of the conservative A-Team and would not attract the top-end law clerks that the justices get to help them tighten judicial reasoning. She has only come to public attention because Smith chose to prosecute Trump’s Mar-a-Lago documents case in Florida.
But there are many others like Cannon, appointed by Trump to district court judgeships and eager to advance in the ranks by doing their part to help the conservative cause. If Trump is reelected and the Senate goes Republican, some of them, perhaps Cannon, will be rewarded with promotion. And new conservative mini-activists will be appointed to district and appellate courts across the country.
This constitutional revolution started at the top. It’s now trickling down throughout the federal judicial system.
