Harry Litman

The initial impulse on reading Judge Aileen Cannon’s pseudo-scholarly 93-page dismissal of the classified documents case against Donald Trump is to list the legal errors and overreaches that demonstrate its brazenness and likelihood of being reversed.

The opinion, which throws out the case on the dubious premise that special counsel Jack Smith was not properly appointed, could serve as target practice for any first-year law student who has learned about statutory construction and precedent, principles that Cannon mangles as she strains to make the case go away.

But such conventional criticism isn’t really suited to Cannon’s unconventional and embarrassing work. To analyze the case in terms of the nuances of the special counsel law or Cannon’s disregard of United States vs. Nixon is to miss what’s in front of one’s face.

It’s more useful and illuminating to think of the dismissal as the first court decision of Project 2025, in which the rule of law takes an unabashed back seat to the preeminent principle of loyalty to Trump.

Cannon has been operating according to that principle with greater or lesser subtlety since she accepted Trump’s invitation in 2022 to convert a pedestrian Fourth Amendment challenge to the search of his Mar-a-Lago estate into a wholly lawless gumming up of the works.

It is an illustration of the gulf between the normal assumptions of judicial propriety and Cannon’s in-the-tank oversight of the case that it took so many, including me, so long to fully accept the only hypothesis that is consistent with her continual undermining of a cut-and-dried criminal case: that this is entirely a matter of loyalty, not law.

That said, a few aspects of the opinion itself scream out for a response. The first is that notwithstanding Cannon’s repeated invocation of the hoary structural principles of the Constitution’s appointments clause and the separation of powers, the dismissal doesn’t even present such a constitutional analysis. Rather, it revolves around a fairly humdrum question of whether any of several statutes authorize the appointment of a special counsel as the Constitution plainly allows.

Second, the dismissal owes a huge intellectual debt to one person, Justice Clarence Thomas, who raised the issue in his concurrence with the Supreme Court’s recent ruling on presidential immunity. Not content with fully joining the court’s breathtakingly broad majority opinion, Thomas also opted to “write separately to highlight another way in which this prosecution may violate our constitutional structure,” floating the very theory seized upon by Cannon.

Despite Thomas’ well-known penchant for absolutist, first-principle opinions, however, even he stopped short of endorsing the theory Cannon adopts, noting with uncharacteristic tentativeness that he was “not sure” whether Smith’s office was “established by law.” And yet that parlor-room conjecture by a lone justice was enough for Cannon to run with.

Third, Cannon flatly contradicts the Supreme Court’s unanimous finding, in U.S. vs. Nixon, that Congress gave the attorney general “the power to appoint subordinate officers to assist him in the discharge of his duties.” Her solution to this problem is to declare this oft-cited statement “dictum” or a “passing remark.”

So now what? Some observers have taken Cannon’s nuclear solution as a positive development in that it will provide a clear basis for reversal by the U.S. 11th Circuit Court of Appeals as well as a probable Justice Department motion to recuse her. And provided the circuit court doesn’t share Cannon’s disregard for settled law, a reversal should indeed be in the offing. Recusal is a much more serious step, but given Cannon’s misadventure with the search warrant and reported refusal of her fellow judges’ entreaties to relinquish this case, I think there’s a strong prospect of such a remedy.

Alternatively, federal prosecutors may try to file the case again in a different district. Either way, I suspect we have seen the last of Cannon’s rulings on the matter.

Of course, after making a cottage industry of failing to decide issues in the case — there are nine fully argued motions on which Cannon has not ruled — the judge issued her dismissal with impeccable timing for Trump’s purposes. The appellate court probably doesn’t have time to reverse the decision before the election, which would ensure that Trump retains the political benefits of the dismissal while he needs them. And if Trump wins the election, he will simply order the Justice Department to dismiss the case itself.

There’s no avoiding the conclusion that Cannon has violated her oath to do justice without regard to persons. Her earthly reward? It certainly would be consistent with Trump’s promised approach to a second term if she were elevated to a higher court. She may well find herself alongside her new colleagues in the circuit court that resoundingly reversed her. How will they be able to shake her hand?

Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series.