The Stunning Arrogance of the Biden DOJ’s Response to Judge Cannon’s Dismissal

AG Merrick Garland could easily restart the Mar-a-Lago documents case by assigning it to a district U.S. attorney. Instead, he’s appealing Cannon’s ruling.

Author’s Note: Last Saturday (July 13), I published the first piece in what was to be a two-part series on the status of the federal prosecution of Donald Trump in Florida, in which Biden Justice Department special counsel Jack Smith charged the former president with 32 counts of illegally retaining classified documents and eight counts of obstruction. I have since had to overhaul part two because on Monday (July 15), Judge Aileen Cannon dismissed the case, ruling that Smith’s appointment as a special counsel violated the Constitution’s appointment’s clause. Rather than promptly restart the case by reassigning it to a district U.S. attorney, Biden attorney general Merrick Garland has approved an appeal of Judge Cannon’s ruling. What follows is a discussion of the prosecution’s status in light of that decision.

T he Democratic narrative about Donald Trump is that he is reckless and temperamentally unfit for the presidency. My own view is that Trump has a mercurial streak and is a social-media blowhard, but that he’s actually sheepish when it comes to action — relying on legal advisers to know when to ignore his outbursts (Fire Mueller!) and to implement policies that, unlike Biden’s usurpations, stay within constitutional and statutory boundaries.

Of course, I get the January 6 retort to that critique. In the end, though, Trump never even tried to recruit the armed forces into his shenanigans, he backed down after a little resistance to the cockamamie effort to pull his Justice Department into these machinations, and he couldn’t be charged in the Capitol riot by Biden Justice Department prosecutors — and God knows they tried — because he didn’t actually direct violent resistance, much to the chagrin of rabble-rousers who expected him to call them into service as a militia.

Biden, on the other hand, is reckless. And his chief legal adviser, Attorney General Merrick Garland, isn’t helping.

Not surprisingly, the Biden DOJ has announced that it will appeal Judge Aileen Cannon’s dismissal of the Mar-a-Lago documents indictment against Trump. In a thoughtful 93-page opinion, which our Dan McLaughlin outlined on Monday, Judge Cannon of the Florida federal district court held that Smith’s appointment violated the Constitution’s appointments clause.

As I’ve explained here and here, I believe this is the correct interpretation of the Constitution. I am not saying there are not colorable counterarguments (in particular, the question of whether a passage in United States v. Nixon (1974) is dictum or binding precedent). But it should not be deniable by reasonable people that Cannon’s view is at least arguably sound. Her opinion echoes the views expressed by Justice Clarence Thomas in his immunity-case concurrence just two weeks ago, as well as the views of former attorneys general Ed Meese and Michael Mukasey, among other legal luminaries who filed amicus briefs in the Florida case. (Judge Mukasey explained his position in a recent Wall Street Journal op-ed.)

I point this out to demonstrate how unreasonable and arrogant the Biden administration is. The Justice Department could easily have accounted for this contingency and made adjustments that would have cost the DOJ nothing — adjustments that any normal, competent U.S. attorney’s office would have made.

What if Judge Cannon is wrong? So what? News flash: Judges get stuff wrong from time to time. More to the point, competent federal prosecutors anticipate where judges may misstep — or, at least, arguably misstep — and plan accordingly.

A big part of a judge’s job is to vindicate the constitutional presumptions in favor of the defendant. Hence, competent prosecutors must anticipate that judges are going to rule against them on many close calls — e.g., whether a warrant is required, whether Miranda warnings should have been given, whether information in government files that could endanger witnesses must be disclosed, whether some privilege bars the prosecution from obtaining evidence from a particular source, and so on. If prosecutors want to move their case along efficiently, they must be prepared for the not-unforeseeable prospect that the judge will rule against them.

In a normal prosecutor’s office, then, the discussion is not along the lines of, “Screw the judge, we’re going to do what we think is right”; since the judge is in charge of the legal proceeding, that’s how you lose the case. Instead, the prosecutors’ deliberations are along the lines of, “What Plan B, if we lose on this one, will enable us to live with the ruling, to get what we need even if we can’t get everything we think we’re entitled to?”

In his formal appointment order (see here, paragraph (e)), Garland invoked §600.6 in vesting Smith with “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” That means Smith was to exercise the powers of an officer of the United States. Judge Cannon did not resolve the vexing question of whether this power — equivalent to that of a district U.S. attorney — is that of a principal or inferior officer of the United States. But either way, Smith is ineligible.

Under the appointments clause, principal officers must be nominated by the president and confirmed by the Senate; inferior officers must serve in positions created by statute and must qualify in accordance with what the statute requires (which is often Senate confirmation). Smith was not presidentially nominated and Senate confirmed, nor does he serve in a position created by statute — he was appointed under a regulation decreed by the Clinton Justice Department.

Regulations are not statutes and cannot alter the Constitution’s requirements. Ergo, Smith does not qualify. Certainly, it should be easy for reasonable people to say, “Yeah, I know these regs have been on the books for 25 years, but there sure seems to be a significant question about whether the regulations under which Smith was appointed are valid.”

It would thus be the height of arrogance for a prosecutor’s office to decide there was no way a judge would find Smith’s appointment to be constitutionally infirm — at least once the prosecutor’s office knew the defense would make such a challenge.

I point this out because, as I’ve noted about a million times, there was no basis to appoint a special counsel in this case. There was no conflict of interest between the Biden Justice Department and Trump that required such an appointment (which is no doubt why Garland conveniently omitted from Smith’s appointment order §600.1, which stipulates that “a conflict of interest for the Department [of Justice]” is among the “grounds for appointing a special counsel”).

The Biden Justice Department was investigating Trump for nearly two years before Garland’s appointment of Smith. There was no conflict.

Smith was thus appointed for political reasons, not because the law dictated it. Biden and Garland were trying to create the illusion that the president and his Justice Department had nothing to do with the prosecution of the president’s opponent in the upcoming election. But the illusion is constitutionally absurd. Federal prosecutorial power is vested in the president, who exercises it through the attorney general and the Justice Department. A prosecutor — whether Garland, a district U.S. attorney, or Smith — has no power; he is delegated to exercise the president’s power at the president’s pleasure.

The normal, easy way for the Justice Department to investigate and prosecute Trump would have been to assign the case to the U.S. attorney’s office in the appropriate district. In the Mar-a-Lago documents case, that would have been the Southern District of Florida (SD-Fla). That office could have worked the case in conjunction with the Justice Department’s National Security Division because the case involves highly classified information.

But Garland wouldn’t do that because the SD-Fla U.S. attorney’s office and the National Security Division are components of the Biden Justice Department, and Garland wanted everyone to pretend that Biden and his DOJ were insulated from the prosecution of Trump.

Maybe this charade would have been tenable if there hadn’t been a serious challenge to Smith’s appointment. In some prior special-counsel cases — for example, Robert Mueller’s prosecution of Paul Manafort — it is not clear that the defense challenged the constitutionality of the special counsel’s appointment. And there is a D.C. Circuit case in which such a challenge was rejected — although, as I’ve related, that case (a) did not seriously grapple with the constitutional questions raised and (b) is not binding on federal courts in Florida.

Once it was clear, however, that there would be a serious constitutional challenge to Smith’s appointment, it was incumbent on a responsible Justice Department to make contingency plans. Here, all Garland had to do was transfer the case to the supervision of the U.S. attorney in SD-Fla (or to any other of the 94 presidentially appointed, Senate-confirmed district U.S. attorneys in the country). Substantively, nothing would have changed. Smith could still have been in charge, and his staff could still have been running the case. It’s just that they would technically have been under the SD-Fla U.S. attorney in the chain-of-command.

That would just have been an on-paper change. But it would have left Trump with no basis to challenge the constitutional validity of the case brought by Jack Smith as a prosecutor. Garland, however, mulishly resisted making this easy tweak because to make it would be to admit that the Biden Justice Department is using the president’s power to prosecute the president’s opponent — as if pretending this unavoidable fact is not a fact makes it any less a fact.

And now, rather than just making that easy change, the Biden Justice Department is going to appeal Cannon’s ruling — meaning it will go to the Eleventh Circuit (where I believe DOJ is likely to lose) and then to the Supreme Court (where it is also likely to lose).

If Garland and Smith stick with that plan, it will take at least a year to sort this out. If Garland had a reasonable person whispering in his ear, that person would say, “If you are still the attorney general at that point, it’s very likely you will be in exactly the same position you are in today. So why not forget the appeal and make the easy fix today?”

In a column on Monday, I appealed to President Biden to end the lawfare against former President Trump. Doing so would be good for the country and would reward Biden politically. Obviously, then, I would be glad to see the Florida prosecution fade away. Since it’s not fading away, though, note the following.

Garland could easily get the Florida prosecution of Trump up and running in just a few days. All the AG would need to do is assign the case to a district U.S. attorney. Even if it turned out that Smith would rather resign than accept the transfer (which I doubt), certainly his staffers — who have spent a couple of years working the case — would accept the AG’s order transferring them to that U.S. attorney’s supervision. It would not change their day-to-day duties, and it would not require any meaningful delay in the case. To the contrary, if they were prudent, they’d use the opportunity to file an indictment that slimmed the case down to the obstruction counts. That would obviate the need to slog through the classified-documents litigation that has slowed the pace of pretrial proceedings to a crawl.

Instead, Garland is appealing. Rather than conceding that Judge Cannon has a point — which she undoubtedly does, even if you’re not convinced that she’s right — the Biden approach, echoed by the media–Democrat complex, will be to rant that Cannon is a Trump appointee, as if innuendo explained everything.

The facts, however, are that (a) the Florida case was bogged down because Smith grossly overcharged it, larding it with not one but 32 Espionage Act counts (at the same time Garland was ensuring that Biden would face no Espionage Act counts for his decades-long illegal retention of classified documents); and (b) Garland will now further needlessly bog the matter down with an appeal he is likely to lose a year or more from now, when he could instead just assign the case to a Biden-appointed district U.S. attorney and keep it moving.

I happen to think Judge Cannon is right about the appointments clause. But even if she’s wrong, she’s not nearly as wrong as the attorney general – whose reasoning can only be explained by partisan politics.