While you praise the quality of Cannon's opinion, what I take from your post is that she seemed to adjust her analytical methods as she moved from one Smith argument to the next. When the text is clear and explicit and cuts against her ultimate ruling, she delves into other factors and rationalizations that seem convoluted. When the text is ambiguous, she brushes aside evidence/arguments that cut against her ultimate ruling and finds some minutiae on which to rely. When there is on point SCOTUS precedent that is consistent with the arguments of Smith, she finds a way to discount that. I mean, isn't US v Nixon alone a basis to justify Smith's reliance on 533?
I don't see anything in this opinion to rebut the argument that she wanted to reach the finding she did, and she mainipulated her legal reasoning in order to get there.
My thoughts exactly. "Defensible" as any one element of Cannon's analysis is, in aggregate it seems so results-oriented it is hard to take it seriously. The "official vs. officer" analysis and waving away contrary SCOTUS words as "dicta" seemed like pure sophistry to me.
I think it’s a Yuval Levin point that people are not allowing institutions to shape their character, but rather are trying to shape their institutions according to their own character. And as a consequence, a lot of institutions aren’t functioning well at the moment it’s a deeply small c conservative point and I can’t help but feeling the judge Cannon doesn’t really understand what being a district court judge is.. she seems quite adept at acting as a conservative pundit with legal training, but I’m fairly certain that’s not what her job is.
Double upvote for the Levin reference (and yeah, AFAIK he deserves credit for at least that formulation of an older point) -
I like one phrasing he used in an NPR interview (after the book came out):
"We now think of institutions less as formative and more as performative, less as molds of our character and behavior, and more as platforms for us to stand on and be seen. "
As usual I am grateful Adam took so many pains to explain so many technical issues in such an interesting way. I feel I now understand this important case. What I do not understand is Adam letting Cannon off without a reprimand. He demonstrated that her opinion is entirely result oriented which in this case is close to being transactional that is akin to a bribe.
He's a practicing appellate attorney, so this is pretty daring by those standards. And, unfortunately, Adam would be pretty likely to see Cannon at his next Supreme Court oral argument, if Trump is re-elected.
I read as much of the opinion as I could stomach, but it does seem that she pretzels her way around the existing statutes mainly by her "it all applies only to existing employees." Doesn't this turn the whole thing into a question of what HR did and in what order when Smith went on the payroll--clearly he's on SOMEONE's payroll and there's no suggestion anyone other than DOJ issues the year end tax statements.
SO. If HR "hired" Smith first, and then Garland "appointed him" isn't Smith an existing employee of the DOJ? Even if the "existing" was for a full 3 minutes? Do we have any idea what HR did? Does Smith get a W-2 or a 1099?
Your analysis is excellent, but you don't address the other problem with Judge Cannon's decision: the remedy she ordered. Why is dismissing an indictment — an indictment issued not by Jack Smith, but by a grand jury lawfully established by the district court — the remedy if Jack Smith's appointment actually was unauthorized?
Appreciate the thoughtful analysis and your blog. As much as I would like Smith to stay on the job, two items trouble me. First, the appointment of an US Attorney requires the consent of the Senate and the President can remove them without cause. Smith has the full power of an USA but can’t be removed without cause. Shouldn’t the statutory analysis consider those factors as well, in that Smith’s argument allows a President to avoid the appointment and appropriation process on a grand scale. Second, what was the point of enacting the Independent Counsel Act in 1978 (and letting it expire), if it didn’t change the authority Congress granted to appoint special counsel. Does Smith’s position allow a President to appoint multiple special counsel to prosecute political enemies without appointment or budget oversight??
1. The Constitution authorizes the Heads of Department to appoint inferior officers, thus avoiding the Senate confirmation process, so I don't think it's a constitutional problem that Smith's position would allow the President to avoid the appointment process. As for the concern that Smith can't be removed, the Attorney General has the authority to revise the applicable regulations and eliminate the Special Counsel's removal protections. And if Smith is a principal officer because of the currently extant regulations, as Cannon suggests he might be, the court could strip out Smith's removal protections, as occurred in the Arthrex case. I don't think the concern that Smith is a principal officer is a reason to interpret the statute to prohibit the appointment of inferior officers.
2. I understand the Independent Counsel Act to have been intended to fix some of the problems that Congress perceived in the Nixon case. For example, Congress vested authority in the D.C. Circuit to appoint a prosecutor. Also, Congress ensured that the Attorney General couldn't amend the regulations and seize removal power. The expiration of the Independent Counsel Act returns us to the state of the world at the time of the Nixon case. So if Jaworski's appointment was authorized, so is Smith's.
I don't agree with Cannon's finding that the Smith appointment is unlawful but I can accept that a well meaning judge might reach such a conclusion. I agree with you about not going with the flow but that too I think could be excused.
What I can't excuse is her choice of remedy. Taking the seperation of powers concerns seriously means that the problem is the prosecution isn't being overseen by officials who are sufficiently politically responsible to the American people.
Ok, if that's the worry then Cannon could have simply ordered Smith off the case and demanded Garland select a normal DOJ employee to take over. That would vindicate the interest in accountability. Surely having an unelected judge dismiss the indictment (even if it can be refiled it creates a road block) does the opposite here.
When higher courts have ruled that various appointments didn't meet constitutional or statutory requirements they gave the legitimate officials the chance to go back and endorse those choices. Cannon could and should have done the same.
You can copy-paste your post into chatGPT and ask it to create illustrations
Best way is to ask for different illustrations for the story in different styles, it's amazingly good and if you demand divesrse styles it's surprisingly amusing
That said, the least convincing part of the article is your praise for the opinion. If I told you that (1) the plain text of a statute (and a plausible read of another statute), (2) a Supreme Court opinion, (3) a good chunk of history and tradition, and (4) the bulk of persuasive authority pointed in one direction, but the counterargument is that (1) maybe the Supreme Court language isn't mandatory and (2) that some other history and tradition along with (3) a convoluted textual reading point in the other direction.... I think you would want to be making the first argument.
Also, as one of the likely presidential candidates might say, we exist in the context of all that has gone before. If this were Judge Cannon's first rodeo, I might be inclined to be generous as you are being. But she has previously gone WAY out on a limb to do a solid for the president who appointed her.
All of these things together make this opinion--no matter how superficially careful--stink.
Really appreciate this write-up, very thorough and clear for non-lawyers. (I also greatly enjoyed the last explainer about the Confrontation Clause as well). Thank you!
I'm interested by your brief reference to Fischer. What is your opinion on that case and the use of noscitur a sociis there? As a non-lawyer, my reaction was similar to what you wrote about Section 533.
I am dubitante on Fischer. It's a very atextual decision. On the other hand, "otherwise" clauses are supposed to be narrow, plus courts tend to favor narrow interpretations of substantive criminal statutes (i.e. statutes defining what is and isn't illegal), plus Congress obviously did not have this type of fact pattern in mind. It's a poorly written law and the Court's opinion sort of straddles the line between interpretation and rewriting.
As an analogy, look at the recess appointment issue. There was a fairly settled body of practice that SCOTUS swept away in Noel Canning. They could easily do the same here.
Their crabbed mode of constitutional construction points to a ruling that someone vested with Smiths prosecutorial powers must be a Senate confirmed officer or formally appointed by same.
Quick question. To what extent does Judge Cannon's apparently well-written opinion mirror Justice Thomas' arguments in the immunity case? Given your interest in the use of AI to craft legal opinions after being fed a variety of cases/decisoins, I have to believe this question occurred to you.
Justice Thomas's concurrence suggests he would reach the same conclusion as Judge Cannon. But Justice Thomas addresses these issues very briefly, in a single page of his concurrence. Judge Cannon's decision is vastly more thorough.
Thank you, Adam. I have been struggling with some of the issues that you discuss since this opinion was published. Question: if Section 533(1) authorizes the AG to hire only non-officers (what J. Thomas refers to as "non-officer employees"), then isn't that section entirely superfluous? Wasn't the AG already authorized to hire employees and to assign tasks to them? Isn't it commonly accepted that a statute should not be interpreted in a way that renders it superfluous?
If the AG already has plenary authority to hire non-officer employees who qualify as "officials," then yes, Judge Cannon's decision would create a surplusage problem, which is another point against it. I don't know whether the AG has that authority or not.
Thanks. This looks like another example of statutes not providing the clear answer that I would like. 28 USC 530C (titled Availability of Funds) says that the AG can accomplish any of the tasks of the DOJ "through the Department's own personnel" in (a)(1), but then the list of specifically authorized uses of funds in (b) does not include the payment of salaries, wages and benefits for those personnel. However, (c)(1) specifically limits the compensation of lawyer/employees unless those lawyers are admitted in the jurisdiction in which they practice. So, you have to make a couple of inferences to come to the conclusion that the AG is authorized by Congress to hire DOJ employees. The surplusage arguments isn't quite as good as it first seemed to me.
While you praise the quality of Cannon's opinion, what I take from your post is that she seemed to adjust her analytical methods as she moved from one Smith argument to the next. When the text is clear and explicit and cuts against her ultimate ruling, she delves into other factors and rationalizations that seem convoluted. When the text is ambiguous, she brushes aside evidence/arguments that cut against her ultimate ruling and finds some minutiae on which to rely. When there is on point SCOTUS precedent that is consistent with the arguments of Smith, she finds a way to discount that. I mean, isn't US v Nixon alone a basis to justify Smith's reliance on 533?
I don't see anything in this opinion to rebut the argument that she wanted to reach the finding she did, and she mainipulated her legal reasoning in order to get there.
My thoughts exactly. "Defensible" as any one element of Cannon's analysis is, in aggregate it seems so results-oriented it is hard to take it seriously. The "official vs. officer" analysis and waving away contrary SCOTUS words as "dicta" seemed like pure sophistry to me.
I think it’s a Yuval Levin point that people are not allowing institutions to shape their character, but rather are trying to shape their institutions according to their own character. And as a consequence, a lot of institutions aren’t functioning well at the moment it’s a deeply small c conservative point and I can’t help but feeling the judge Cannon doesn’t really understand what being a district court judge is.. she seems quite adept at acting as a conservative pundit with legal training, but I’m fairly certain that’s not what her job is.
Double upvote for the Levin reference (and yeah, AFAIK he deserves credit for at least that formulation of an older point) -
I like one phrasing he used in an NPR interview (after the book came out):
"We now think of institutions less as formative and more as performative, less as molds of our character and behavior, and more as platforms for us to stand on and be seen. "
As usual I am grateful Adam took so many pains to explain so many technical issues in such an interesting way. I feel I now understand this important case. What I do not understand is Adam letting Cannon off without a reprimand. He demonstrated that her opinion is entirely result oriented which in this case is close to being transactional that is akin to a bribe.
He's a practicing appellate attorney, so this is pretty daring by those standards. And, unfortunately, Adam would be pretty likely to see Cannon at his next Supreme Court oral argument, if Trump is re-elected.
I read as much of the opinion as I could stomach, but it does seem that she pretzels her way around the existing statutes mainly by her "it all applies only to existing employees." Doesn't this turn the whole thing into a question of what HR did and in what order when Smith went on the payroll--clearly he's on SOMEONE's payroll and there's no suggestion anyone other than DOJ issues the year end tax statements.
SO. If HR "hired" Smith first, and then Garland "appointed him" isn't Smith an existing employee of the DOJ? Even if the "existing" was for a full 3 minutes? Do we have any idea what HR did? Does Smith get a W-2 or a 1099?
Your analysis is excellent, but you don't address the other problem with Judge Cannon's decision: the remedy she ordered. Why is dismissing an indictment — an indictment issued not by Jack Smith, but by a grand jury lawfully established by the district court — the remedy if Jack Smith's appointment actually was unauthorized?
Appreciate the thoughtful analysis and your blog. As much as I would like Smith to stay on the job, two items trouble me. First, the appointment of an US Attorney requires the consent of the Senate and the President can remove them without cause. Smith has the full power of an USA but can’t be removed without cause. Shouldn’t the statutory analysis consider those factors as well, in that Smith’s argument allows a President to avoid the appointment and appropriation process on a grand scale. Second, what was the point of enacting the Independent Counsel Act in 1978 (and letting it expire), if it didn’t change the authority Congress granted to appoint special counsel. Does Smith’s position allow a President to appoint multiple special counsel to prosecute political enemies without appointment or budget oversight??
1. The Constitution authorizes the Heads of Department to appoint inferior officers, thus avoiding the Senate confirmation process, so I don't think it's a constitutional problem that Smith's position would allow the President to avoid the appointment process. As for the concern that Smith can't be removed, the Attorney General has the authority to revise the applicable regulations and eliminate the Special Counsel's removal protections. And if Smith is a principal officer because of the currently extant regulations, as Cannon suggests he might be, the court could strip out Smith's removal protections, as occurred in the Arthrex case. I don't think the concern that Smith is a principal officer is a reason to interpret the statute to prohibit the appointment of inferior officers.
2. I understand the Independent Counsel Act to have been intended to fix some of the problems that Congress perceived in the Nixon case. For example, Congress vested authority in the D.C. Circuit to appoint a prosecutor. Also, Congress ensured that the Attorney General couldn't amend the regulations and seize removal power. The expiration of the Independent Counsel Act returns us to the state of the world at the time of the Nixon case. So if Jaworski's appointment was authorized, so is Smith's.
I don't agree with Cannon's finding that the Smith appointment is unlawful but I can accept that a well meaning judge might reach such a conclusion. I agree with you about not going with the flow but that too I think could be excused.
What I can't excuse is her choice of remedy. Taking the seperation of powers concerns seriously means that the problem is the prosecution isn't being overseen by officials who are sufficiently politically responsible to the American people.
Ok, if that's the worry then Cannon could have simply ordered Smith off the case and demanded Garland select a normal DOJ employee to take over. That would vindicate the interest in accountability. Surely having an unelected judge dismiss the indictment (even if it can be refiled it creates a road block) does the opposite here.
When higher courts have ruled that various appointments didn't meet constitutional or statutory requirements they gave the legitimate officials the chance to go back and endorse those choices. Cannon could and should have done the same.
You can copy-paste your post into chatGPT and ask it to create illustrations
Best way is to ask for different illustrations for the story in different styles, it's amazingly good and if you demand divesrse styles it's surprisingly amusing
A Lil Uzi Vert reference? I knew you were good, but I was not familiar with your range!
*You* do an excellent job, as usual.
That said, the least convincing part of the article is your praise for the opinion. If I told you that (1) the plain text of a statute (and a plausible read of another statute), (2) a Supreme Court opinion, (3) a good chunk of history and tradition, and (4) the bulk of persuasive authority pointed in one direction, but the counterargument is that (1) maybe the Supreme Court language isn't mandatory and (2) that some other history and tradition along with (3) a convoluted textual reading point in the other direction.... I think you would want to be making the first argument.
Also, as one of the likely presidential candidates might say, we exist in the context of all that has gone before. If this were Judge Cannon's first rodeo, I might be inclined to be generous as you are being. But she has previously gone WAY out on a limb to do a solid for the president who appointed her.
All of these things together make this opinion--no matter how superficially careful--stink.
Really appreciate this write-up, very thorough and clear for non-lawyers. (I also greatly enjoyed the last explainer about the Confrontation Clause as well). Thank you!
I'm interested by your brief reference to Fischer. What is your opinion on that case and the use of noscitur a sociis there? As a non-lawyer, my reaction was similar to what you wrote about Section 533.
I am dubitante on Fischer. It's a very atextual decision. On the other hand, "otherwise" clauses are supposed to be narrow, plus courts tend to favor narrow interpretations of substantive criminal statutes (i.e. statutes defining what is and isn't illegal), plus Congress obviously did not have this type of fact pattern in mind. It's a poorly written law and the Court's opinion sort of straddles the line between interpretation and rewriting.
How would you rewrite 28 U.S.C. § 515 (a)&(b) to clarify that the section includes its historical purpose?
I would use wording similar to the wording in Section 543: The Attorney General may appoint attorneys as special assistants to the Attorney General.
As an analogy, look at the recess appointment issue. There was a fairly settled body of practice that SCOTUS swept away in Noel Canning. They could easily do the same here.
Their crabbed mode of constitutional construction points to a ruling that someone vested with Smiths prosecutorial powers must be a Senate confirmed officer or formally appointed by same.
Formally, I.e. under specific statutory authority.
Quick question. To what extent does Judge Cannon's apparently well-written opinion mirror Justice Thomas' arguments in the immunity case? Given your interest in the use of AI to craft legal opinions after being fed a variety of cases/decisoins, I have to believe this question occurred to you.
Justice Thomas's concurrence suggests he would reach the same conclusion as Judge Cannon. But Justice Thomas addresses these issues very briefly, in a single page of his concurrence. Judge Cannon's decision is vastly more thorough.
Also it seems clear that most of it was written before Thomas's dissent hence the only very brief mention of it.
Thank you, Adam. I have been struggling with some of the issues that you discuss since this opinion was published. Question: if Section 533(1) authorizes the AG to hire only non-officers (what J. Thomas refers to as "non-officer employees"), then isn't that section entirely superfluous? Wasn't the AG already authorized to hire employees and to assign tasks to them? Isn't it commonly accepted that a statute should not be interpreted in a way that renders it superfluous?
If the AG already has plenary authority to hire non-officer employees who qualify as "officials," then yes, Judge Cannon's decision would create a surplusage problem, which is another point against it. I don't know whether the AG has that authority or not.
Thanks. This looks like another example of statutes not providing the clear answer that I would like. 28 USC 530C (titled Availability of Funds) says that the AG can accomplish any of the tasks of the DOJ "through the Department's own personnel" in (a)(1), but then the list of specifically authorized uses of funds in (b) does not include the payment of salaries, wages and benefits for those personnel. However, (c)(1) specifically limits the compensation of lawyer/employees unless those lawyers are admitted in the jurisdiction in which they practice. So, you have to make a couple of inferences to come to the conclusion that the AG is authorized by Congress to hire DOJ employees. The surplusage arguments isn't quite as good as it first seemed to me.