Judge Cannon’s flawed dismissal of Trump’s indictment ignored important precedent | Opinion

In July, U.S. District Judge Aileen M. Cannon dismissed the indictment of Donald Trump for mishandling national security information — remember the pictures of boxes stored in his bathroom?

She did so because Special Counsel Jack Smith, who brought the prosecution, had been a private citizen before being appointed by the U.S. attorney general. The appointment, Cannon ruled, was therefore unconstitutional.

In so ruling, Judge Cannon defied a 1974 Supreme Court decision, “U.S. v. Nixon,” that was directly on point.

A lawyer in private practice was appointed by President Richard Nixon’s attorney general to be special prosecutor in the Watergate case. Close associates of the president were indicted for obstructing justice. The special prosecutor subpoenaed documents from the president, who objected, claiming the documents were “privileged” — they could not be subpoenaed.

Nixon also argued that because this was a dispute between two members of the executive branch, it was not “justiciable” — meaning, it was not for the courts to decide. A case is justiciable if it involves a concrete (real) dispute between parties on opposite sides of the dispute. In the Nixon case, this turned on whether the special prosecutor was properly appointed under the laws of the United States. The Supreme Court concluded that he was — pursuant to laws passed by Congress that authorized the appointment of the special prosecutor under the “Appointments Clause” of the Constitution.

Trump argued to Cannon that the Supreme Court’s conclusion in Nixon that the special prosecutor had been properly appointed was, for technical legal reasons, not binding on Cannon in deciding whether Smith had been properly appointed special counsel. Smith argued the contrary position.

The law establishes that whether the Supreme Court’s conclusion is binding on Cannon in the Trump case depends on whether it had been “necessary” to the Supreme Court’s decision that the dispute was justiciable (that it was an actual dispute between parties on opposite sides of the dispute).

After agreeing on this as the proper test of whether the Nixon conclusion was binding on her, Cannon ignored the very test she agreed on, in favor of a different legal test that, while she was at it, she misstated. And she opined that, whether or not the conclusion that the special prosecutor had been properly appointed was technically binding, and even though it was contained in a Supreme Court decision, she could ignore it because it was “neither ‘thoroughly reasoned’ nor ‘of recent vintage.’”

In so ruling, Cannon also disregarded a 2019 decision of the court often referred to as the second most important court in the United States — the U.S. Court of Appeals for the D.C. Circuit. In another special counsel prosecution, that appeals court addressed the very issue Cannon decided in favor of Trump: whether the language in the Nixon decision was binding.

The D.C. Circuit concluded that the Nixon decision was binding on other courts because it was necessary to the decision on justiciability. Cannon, however, claimed the right to disregard the D.C. Circuit’s interpretation of Nixon because, in her view, that court did not consider the question “in a meaningful way.”

In this lawyer’s considered opinion, the very same thing could be said of Cannon’s dismissal of the Trump indictment.

Richard E. Brodsky is a lawyer based in Coral Gables and is a member of The Florida Bar.