Trump-appointed federal judge rules Trump’s classified document case is unconstitutional – here’s how special counsels have been authorized before
- Written by Joshua Holzer, Assistant Professor, Westminster College
The federal judge presiding over the classified documents case[1] against former President Donald Trump dismissed[2] the case on July 15, 2024.
U.S. District Judge Aileen Cannon[3], who was appointed to the bench by Trump, ruled that Special Counsel Jack Smith[4], who is leading the prosecution, was unlawfully appointed to his role and did not have the authority to bring the case.
Here’s how the federal government has used special counsels in high-profile investigations over the years, and how Cannon’s ruling, which Smith said he is appealing[5], would affect ongoing and future cases.
A brief history of independent counsels
Ensuring impartiality in the U.S. Justice Department can be difficult, as the attorney general is appointed by[6] – and answerable to – a partisan president. This gives presidents the power to try to influence the attorney general to pursue a political agenda.
President Richard Nixon[7] did this during the investigation of the Watergate break-in[8], which threatened to implicate him in criminal acts and end his presidency.
On the evening of Oct. 20, 1973[9], Nixon ordered Attorney General Elliot Richardson[10] to fire Archibald Cox[11], whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned.
Nixon then ordered Deputy Attorney General William Ruckelshaus[13] to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General Robert Bork[14], the next most senior official at the Justice Department, to fire Cox. Bork complied.
This dramatic series of events, often referred to as the Saturday Night Massacre[15], demonstrated how presidents could exercise political power over federal criminal investigations.
After the Watergate scandal, Congress considered[16] legislation to make the Justice Department into an independent agency in order to better insulate it from presidential influence.
This would have been in line with what many of the founders originally intended[17]. But Congress decided on more modest reform and passed the Ethics in Government Act of 1978[18], which was enacted by President Jimmy Carter and created the Office of Independent Counsel.
This allowed for investigations into misconduct that could operate outside of presidential control[19] because the attorney general could ask a special three-judge panel to appoint an independent counsel to investigate.
The Ethics in Government Act[20] also disqualified Justice Department employees, including the attorney general, from participating in any investigation or prosecution that could “result in a personal, financial, or political conflict of interest, or the appearance thereof” for the investigator.
US Supreme Court already has backed counsels
A few years later, the Reagan administration argued that independent counsels were unconstitutional. Its reasoning: the act violated the appointments clause[21] of Article II, Section 2, Clause 2 of the Constitution, which states that “Officers of the United States” are “appointed by the President” and “subject to the advice and consent of the Senate.”
In 1988[22], the Supreme Court ruled that independent counsels were constitutional[23], as the appointment clause also states that “Congress may vest the appointment of inferior officers in the President alone, in the Courts of Law, or in the Heads of Departments.”
In essence the Supreme Court determined that appointees can be considered either “principal” and must be appointed by the president and confirmed by the Senate, or “inferior,” which could be appointed by a department head, such as the attorney general, or judges.
The Supreme Court ruled that an “independent counsel should be considered an inferior rather than a principal officer[24].”
Creation of special counsels
In 1999, the Ethics in Government Act – which had a sunset clause[25] – needed to be renewed.
By that point, both political parties and their presidents had been humiliated by prior independent counsel investigations. Republicans were reeling from the Iran-Contra scandal[26], while Democrats were embarrassed by the Monica Lewinsky scandal[27].
It was also unclear which party would win the White House in the upcoming 2000 election, and neither party wanted the other to have any future advantage. During this standoff, both parties decided to simply let the Ethics in Government Act expire[28], thereby ending the possibility of appointing future independent counsels.
Later that year, then-Attorney General Janet Reno authorized[29] the appointment of what she called special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated.
Robert Mueller was a special counsel appointed by Deputy Attorney General Rod Rosenstein in 2017[30] to investigate possible Russian interference in the 2016 elections[31] and possible links between the Trump campaign and the Russian government[32].
John Durham[33] was appointed in 2020 by Attorney General Bill Barr to investigate[34] the origins of the investigation that triggered Mueller’s appointment.
Special Counsel Jack Smith, when he was prosecutor at the Kosovo Specialist Chambers court in The Hague, Nov. 10, 2020.
AP Photo/Peter Dejong, Pool[35]
In 2022, Jack Smith[36] was appointed special counsel by Attorney General Merrick Garland to oversee investigations into former President Donald Trump’s role in the Jan. 6 insurrection[37], as well as Trump’s handling of classified government documents[38] upon leaving office in 2021.
In 2023[39], Robert Hur was appointed by Garland as special counsel to investigate President Joe Biden’s handling of classified documents after leaving office as vice president in 2017.
Also in 2023[40], David Weiss was appointed by Garland as special counsel to investigate Hunter Biden’s illegal purchase of a firearm as well as tax-related problems.
Effects beyond Trump
In early July, 2024, the Supreme Court ruled[41] that past, current and future presidents[42] have partial immunity[43] from prosecution.
While the legality of special counsels was not at issue in this case, Justice Clarence Thomas used his concurring opinion[44] to challenge the legality of Smith’s appointment. Thomas argued that Congress has not passed any legislation that gives the attorney general the power to appoint a special counsel.
Thomas noted that the Ethics in Government Act of 1978 “had lapsed, and Congress has not since reauthorized the appointment of an independent counsel.” As such, Thomas questioned the power of attorneys general to appoint special counsels.
In her 93-page order[45] dismissing the case against Trump, Judge Cannon echoed Thomas’ argument.
Cannon asked if there were “a statute in the U.S. Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution?”
She then answered her own question.
“After careful study of this seminal issue, the answer is no,” she wrote.
Cannon’s decision can be appealed to the Supreme Court. If that happens, the outcome could affect more than just Trump’s classified documents case.
Under Cannon’s ruling, any and all special counsels, including those that have investigated Joe and Hunter Biden[46], could also be deemed unconstitutional.
Editor’s note: This story incorporates material from an earlier story published on Dec. 14, 2022[47].
References
- ^ the classified documents case (theconversation.com)
- ^ dismissed (apnews.com)
- ^ U.S. District Judge Aileen Cannon (theconversation.com)
- ^ Special Counsel Jack Smith (theconversation.com)
- ^ he is appealing (www.bloomberg.com)
- ^ appointed by (theconversation.com)
- ^ Richard Nixon (www.whitehouse.gov)
- ^ Watergate break-in (www.washingtonpost.com)
- ^ Oct. 20, 1973 (www.npr.org)
- ^ Elliot Richardson (www.justice.gov)
- ^ Archibald Cox (www.justice.gov)
- ^ Photo by U.S. Department of Justice via Getty Images (www.gettyimages.com)
- ^ William Ruckelshaus (www.npr.org)
- ^ Robert Bork (www.justice.gov)
- ^ Saturday Night Massacre (www.youtube.com)
- ^ considered (www.washingtonpost.com)
- ^ originally intended (theconversation.com)
- ^ Ethics in Government Act of 1978 (www.congress.gov)
- ^ outside of presidential control (www.law.cornell.edu)
- ^ Ethics in Government Act (www.congress.gov)
- ^ appointments clause (constitution.congress.gov)
- ^ 1988 (www.law.cornell.edu)
- ^ independent counsels were constitutional (supreme.justia.com)
- ^ independent counsel should be considered an inferior rather than a principal officer (supreme.justia.com)
- ^ sunset clause (fas.org)
- ^ Iran-Contra scandal (www.hsdl.org)
- ^ Monica Lewinsky scandal (www.govinfo.gov)
- ^ let the Ethics in Government Act expire (www.cnn.com)
- ^ authorized (www.washingtonpost.com)
- ^ 2017 (www.justice.gov)
- ^ possible Russian interference in the 2016 elections (theconversation.com)
- ^ possible links between the Trump campaign and the Russian government (theconversation.com)
- ^ John Durham (www.justice.gov)
- ^ to investigate (www.justice.gov)
- ^ AP Photo/Peter Dejong, Pool (newsroom.ap.org)
- ^ Jack Smith (www.nytimes.com)
- ^ Jan. 6 insurrection (theconversation.com)
- ^ handling of classified government documents (theconversation.com)
- ^ 2023 (theconversation.com)
- ^ Also in 2023 (theconversation.com)
- ^ ruled (supreme.justia.com)
- ^ presidents (theconversation.com)
- ^ partial immunity (theconversation.com)
- ^ concurring opinion (www.courthousenews.com)
- ^ In her 93-page order (www.documentcloud.org)
- ^ Hunter Biden (www.newsweek.com)
- ^ published on Dec. 14, 2022 (theconversation.com)
Authors: Joshua Holzer, Assistant Professor, Westminster College
