“[T]he aspiration to effective individual remediation for every constitutional violation represents an important remedial principle, but not an unqualified command.”  Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1789 (1991)

Judge Aileen Cannon recently dismissed an indictment against Donald Trump and two co-conspirators upon concluding that the Attorney General Merrick Garland’s designation of Jack Smith as Special Counsel violated the Constitution’s Appointment Clause.  United States v. Trump, — F.Supp.3d —-, 2024 WL 3404555 (July 15, 2024), appeal filed.  But assuming there was an Appointments Clause violation, was dismissal of the indictment necessary? Would some other remedy have been more appropriate, such as providing the Attorney General with time to designate someone else to handle the prosecution or to direct the prosecution himself and ratify Jack Smith’s actions?  This raises anew the question of the appointments and removal litigation “ecosystem,” namely “the set of doctrines that determines the right to make such challenges and the available remedies.”  See, Bernard W. Bell, The Appointment and Removal Litigation Ecosystem, THE REGULATORY REVIEW (July 27, 2021) (discussing Collins v. Yellen, 594 U.S. 220 (2021)).[1] This three-part series will assess the remedial aspects of Judge Cannon’s opinion.  

I offer four conclusions. First, the implications of Judge Cannon’s approach are broader than she might have envisioned, impacting third parties to criminal proceedings and seriously undermining an important class of special counsel investigations.  Second, the inflexible remedial rule Judge Cannon relied upon is based on readily distinguishable Supreme Court precedents, while giving scant weight Buckley v. Valeo, 424 U.S. 1 (1976).  Third, Judge Cannon erred in interpreting the relevant exception to the de facto officer doctrine that would have salvaged the validity of Jack Smith’s actions, and forestalled precisely the sort of confusion the de facto officer doctrine is designed to prevent.  Fourth, under a more flexible remedial approach, several factors suggest that alternatives to dismissing the indictment should have been pursued.

This post (Part I) will summarize Judge Cannon’s decision and discuss its range of potential consequences if applied more broadly.  My next post (Part II) will assess Judge Cannons decision on its own terms.  My third post (Part III) will outline how a more nuanced remedial approach could have been applied.

A.      Judge Cannon’s Decision

Before turning to Judge Cannon’s consideration of the appropriate remedy, a brief description the Appointments Clause violations she identified is necessary. 

Judge Cannon concluded that the Appointment Clause’s requirement that any office must be created “pursuant to law” had been violated. U.S. v. Trump, supra, at *8-*26. (In doing so she relied on Justice Thomas’ lone concurrence in Trump v. United States, which had homed in on that very question only weeks before. U.S. v. Trump, supra, at *7, *12 n.20, *33 (citing Trump v. United States, ––– U.S. ––––, 144 S. Ct. 2312, 2349, (2024) (Thomas, J., concurring).) 

The Attorney General and the Department of Justice have the power to bring criminal prosecutions in the name of the United States.  See, 5 U.S.C. §§ 509, 515, 516, 519.  At times, the Attorney General seeks to insulate a prosecutor from perceived political influence in cases with political ramifications, and can do so by appointing a special counsel.[2]  See, U.S. Dep’t of Justice, Final Rule —Office of Special Counsel, 64 Fed. Reg. 37,038, 37,038 (July 9, 1999) (codified at 28 C.F.R. 600.1-600.10)).  Since 1974, when Attorney General Elliot L. Richardson appointed Archibald Cox to investigate criminal conduct related to the Watergate scandal, Attorneys General who have appointed special counsels from outside DOJ have cited a set of statutes that confer upon the Attorney General the power to appoint attorneys to head particular prosecutions.  See, e.g., Order 3915-2017 (May 17, 2017) (Acting Attorney General Rod Rosenstein’s appointment of Robert S. Mueller III as special counsel to investigate Russian interference with the 2016 presidential election and related matters).[3] Judge Cannon concluded that these statutes did not authorize the Attorney General to appoint as a special counsel a lawyer who was not currently employed by the Department of Justice.   (For an analysis of this issue, see Thomas Berry, Analyzing Judge Cannon’s Opinion: Was Jack Smith Legally Appointed?, Notice & Comment.)

Separately, Judge Cannon suggested that the authority the Attorney General conferred upon Jack Smith made Smith a principal officer of the United States who could be appointed only by the President with the “advice and consent” of the Senate.  However, after analyzing that question she concluded that “the answer under current Supreme Court precedent is not self-evident” and “elected to leave the matter for further review.”  United States v. Trump, supra, at *40.

Because Smith had not been properly appointed, she found that he was not entitled to use the “indefinite appropriation” established by the Department of Justice.  Id. at *44-45; see, Department of Justice Appropriation Act of 1988, Pub. L. 100-202, tit, II, 101 Stat. 1329, 1329-8 to -9 (1987).

Judge Cannon began the discussion of remedies with her conclusion – she saw “no way forward aside from dismissal of the Superseding Indictment,” noting that the Special Counsel had offered no alternative course.  Id. at *41.  Citing Collins v. Yellen, 594 U.S. 220 (2021), she observed that because Appointments Clause challenges “necessarily involve a ‘Government actor’s exercise of power that the actor did not lawfully possess,’ the proper remedy is invalidation of the ultra vires action.”  United States v. Trump, supra, at *41 (quoting Collins v. Yellen, supra, 594 U.S. at 258). Finding Lucia v. SEC, 585 U.S. 237 (2018), the best comparator regarding the appropriate scope of the remedy, she noted that there the Court had explained that the ‘appropriate’ remedy for an adjudication tainted because an ALJ “heard and decided [it] without the kind of appointment the Clause requires,” . . . is a new ‘hearing before a properly appointed’ official.”  Id. at *42.  She thus concluded that “[a]ll actions that flowed from [Jack Smith’s] defective appointment—including his seeking of the Superseding Indictment . . . —were unlawful exercises of executive power.” Id. (emphasis added).

Judge Cannon did not discuss Buckley v. Valeo, 424 U.S. 1 (1976).  There plaintiffs mounted a successful Appointments Clause challenge to the composition of the Federal Election Commission’s, because the legislation creating the Commission required certain members to be selected by specified members of the congressional leadership.   The Commissioners were given “executive,” quasi-legislative, and “quasi-judicial” functions.  Id. at 138-41.  Among the “executive” powers conferred was the primary responsibility for conducting certain civil litigation to vindicate public rights (generally within the exclusive purview of the Department of Justice).  Id. at 140.  The Court upheld the challenge, but asserted that the constitutional infirmity “should not affect the validity of the Commission’s administrative actions and determinations” to the date of the Court’s decision, according the FEC’s prior acts de facto validity.  Id. at 142.[4]

Having laid out “the rule” established in Collins v. Yellen, Judge Cannon the dusted off the de facto officer doctrine, and discussed why it could not be applied to salvage the validity of Jack Smith’s actions.  She explained that the doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient,” but, critically, only in some circumstances.  Id.  Judge Cannon identified two reasons for refusing to apply the doctrine to Jack Smith’s actions. 

First, the doctrine applied only to “technical defects in title to office,” not, as in Smith’s case, “the absence of a statutorily created office to fill.”  Id.  The key case here, Norton v. Shelby County, 118 U.S. 425 (1886), involved the validity of the actions of a board created and given authority by the Tennessee legislature in violation of the state’s constitution.

Second, the de facto officer doctrine has not been applied where a litigant’s challenge to an officer’s appointment had been timely.  She noted: “’[a]ny other rule would create a disincentive to raise Appointments Clause challenges’ in the face of questionable appointments.” Id. (citing Ryder v. United States, 515 U.S. 177, 183 (1995)); see, Lucia, 585 U.S. 237, 251 n.5 (2018).

Judge Cannon also distinguished Office of United States Trustee v. John Q. Hammons Fall 2006, LLC, ––– U.S. ––––, 144 S. Ct. 1588 (2024), cited by the Special Counsel, see, United States v. Trump, supra, at *42 n.64, relegating the discussion to a footnote.  In that case the Court had grappled with the appropriate remedy for a violation of the Constitutional mandate that bankruptcy fees be uniform.  The Court opted for prospective parity, the remedial path Congress itself had chosen, rather than ordering that the government either refund the excess portion of the fees, as plaintiffs requested, or retroactively increasing the fee imposed upon others.  Hammons LLC, supra, 144 S.Ct. at 1592, 1596-98.  Judge Cannon seemed to conclude that the constitutional violation in Hammons LLC was simply less serious than the Appointments Clause violation in the Attorney General’s appointment of Jack Smith.  United States v. Trump, supra, at *42 n.64.

B.  Potential Consequences of Invalidating All of An Invalidly Appointed Special Counsel’s Actions

The consequences of invalidating all of Jack Smith’s actions are substantial, and, if adopted more broadly, could have greater significance than Judge Cannon envisioned. 

The specific remedial action Judge Cannon invoked, dismissing the indictment, has significant consequences itself.  The ruling dismisses a prosecution of a former President for criminal acts committed after he left office that have major national security implications. The investigation was authorized by the Attorney General of the United States and is of significant interest to the public in general (or at least a segment of the electorate) in terms of an upcoming presidential election.  (Granted, the case can be re-presented to the grand jury by a properly appointed prosecutor, but surely not before the presidential election.)  And, under Judge Cannon’s view, presumably every indictment secured by Jack Smith must be dismissed. Most notably, that would include the August 1, 2023 indictment of Donald Trump for conspiring to subvert the results of the 2020 election by impeding the counting of votes (and thereby seeking to deprive citizens of the right to vote) and by seeking to defeat the lawful government function of counting the votes.[5]

But if the invalidation of Jack Smith’s actions were applied more broadly, beyond dismissing indictments without prejudice, it would appear to invalidate any application for arrest or search warrants, even though signed by a magistrate, and any other investigatory steps that required the Special Counsel’s approval.[6] (Indeed, in light of Judge Cannon’s ruling, must every U.S. Magistrate Judge assess the validity of a special counsel’s appointment before issuing a warrant sought by the Office of Special Counsel?) Wider application of Judge Cannon’s blanket invalidation of the Special Counsel’s actions would also appear to require invalidation of any cooperation agreements or plea agreements, as well as conferrals of immunity upon potential co-conspirators or other witnesses.  This might well require re-negotiation of such agreements, and if not secured, might make their evidence unavailable.[7] It might allow the new prosecutor to refuse to honor those agreements, possibly to the detriment of those who entered into them.  Such uncertainty could cripple a criminal investigation.[8]

Most ironically, would invalidating all Jack Smith’s actions invalidate the Supreme Court’s own ruling in Trump v. United States?  While Jack Smith was not counsel of record in Trump v. United States, he chose the counsel of record, Michael Dreeben, formerly a deputy solicitor general, to represent the United States in the case.  Moreover, Smith presumably did make decisions regarding whether to proceed with the appeal, rather than discontinue the prosecution, and was involved in decision-making regarding the arguments to be presented.[9]  (Granted, it is unclear who would have “clean hands” to mount such an effort to vacate Trump v. U.S. on grounds that Smith lacked the power to proceed in the Supreme Court.)

Conclusion

Judge Cannon invalidated all actions of Special Counsel Jack Smith, concluding that wholesale invalidation of the actions of anyone whose appointment violated the Appointments Clause was mandated by Supreme Court precedent.  The consequences of the invalidation of all of the Special Counsel’s actions could be quite wide-ranging in ways that could cripple any special counsel investigation. As I will show in the next Part, adopting a remedy with such severe consequences is not required by Supreme Court precedent.

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[1] The concept of litigation “ecosystems” is borrowed from Joanna C. Schwartz, Civil Rights Ecosystems, 118 MICH. L. REV. 1539 (2020).

[2] Congressional Research Service, Special Counsel Investigations: History, Authority, Appointment and Removal at 2 (March 13, 2019)(“In part to counter perceptions that executive officials suspected of criminal wrongdoing may be subject to different standards than individuals outside the government, independent investigations have sometimes been used to determine whether officials have violated the law.”).  After the Watergate scandal and ensuing investigation of President Richard M. Nixon, Congress enacted a statute providing for the appointment of independent counsels, Ethics in Government Act of 1978, P.L. 95-521, § 601, 92 Stat. 1824, 1867-73 (then codified at 28 U.S.C. § 598), reenacted in 1982, 1987, and 1994. The statute was allowed to lapse after Kenneth Star’s investigation of President William Jefferson Clinton.  Special Counsel Investigations, supra, at 8. See generally, Morrison v. Olson, 487 U.S. 654 (1988) (upholding the independent counsel statute for the most part).

[3]  Attorney General Janet Reno appointed former Missouri Senator John C. Danforth as special counsel to investigate “whether any government employee or agent: directly caused the loss of life at the Mt. Carmel compound, at Waco, Texas, on April 19, 1993, or withheld or suppressed evidence or information or made fraudulent statements regarding the events . . . [there on that date].” U.S. Dept’ of Justice, Press Release #99-400- Attorney General Reno Selects Former Senator John Danforth As Special Counsel To Head Waco Review (Sept. 9, 1999). I have not been able to locate the actual order, which would indicate the statutory authority under which Attorney General Reno appointed Danforth.  Though Danforth served as Missouri’s Attorney General, he appears to have never been an employee of the U.S. Justice Department prior to his appointment as Special Counsel. 

[4] In doing so, it referenced its practice of according “respect to legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment plan.  Buckley v. Valeo, supra, 424 U.S. at 142.   

Perhaps Judge Cannon drew comfort from Justice Rehnquist’s brusque treatment of Buckley v. Valeo in Ryder v. United States, 515 U.S. 177 (1995). The court below, the U.S. Court of Military Appeals, had relied upon Buckley v. Valeo in finding the actions of unconstitutionally appointed adjudicators had de facto validity.  Id. at 180.  Justice Rehnquist dismissed reliance upon Buckley v. Valeo, because the Buckley plaintiffs had been awarded “the declaratory and injunctive relief they sought,” id. at 182, even if that relief had not been extended to similarly situated litigants. This was something of a sleight of hand.

First, any relief granted may have been declaratory and injunctive relief related to the invalidation of certain substantive provisions of the statute, not any discretionary action taken by the Commission itself.  Second, any relief from a discretionary decision of the Commission may have simply reflected the availability of a selective prospectivity approach, namely that the particular litigants in the case would get the benefit of the Court’s holding, even if it was based on a newly adopted and novel rule that it was inappropriate to apply to anyone else. See, Chevron Oil v. Huson, 404 U.S. 97, 105-109 (1971); see generally, James B. Beam Distilling v. Georgia, 501 U.S. 529, 534-538 (1991); contra, id. at 538 (“we have never employed Chevron Oil to the end of modified civil prospectivity” (emphasis added)).  However, between Buckley and Ryder, the Court had overruled Chevron v. Huson, making it impermissible to give relief only to parties in a particular case, but not applying a novel rule to similarly situated individuals in pending cases, Harper v. Virginia Department of Taxation, 509 U.S. 86, 94-97 (1993). 

Note also that Ryder involved unconstitutionally appointed adjudicators (indeed appellate adjudicators) and its discussion was limited to that context. U.S, v. Trump involves an allegedly improperly-appointed prosecutor.  As I will argue below, the distinction between adjudicators and prosecutors is significant. 

[5] The alleged criminal conspiracy to violate 18 U.S.C. § 1512(k), by obstructing the Congressional proceeding to count the electoral college votes, has been cast into doubt by Fischer v. United States, 603 U.S. —-, 144 S.Ct. 2176 (2024).

[6] This is, of course, a narrow interpretation.  Invalidating all of the Special Counsel’s action might also require invalidation of actions the Special Counsel directed, even if taken by Department of Justice lawyers working under him who were properly appointed to their posts.

[7] Such refusals to cooperate are likely all the more likely given the prospect that the lead defendant, Donald J. Trump, might reassume the presidency and thus hold the power to derail all prosecutions of cases involving himself and his co-conspirators, and pardon all of his coconspirators.

[8] The Court has exhibited concern for undermining criminal investigations because of “good faith” constitutional violations – concerned that the accused may go free, even if guilty, because “the constable has blundered.”  People v. Defore, 150 N.E. 585, 587 (N.Y. 1926)(Cardozo, J.)(lamenting that “the criminal is to go free because the constable has blundered”).  Granted, the Court rejected appeals to such doctrines as the “good faith” exception to the exclusionary rule and application of novel constitutional holdings only prospectively in Ryder v. U.S., 515 U.S. at 184-86, albeit in the context of judicial officers appointed in violation of the Appointments Clause.

[9] It is unlikely that the Department of Justice could “claw back” Jack Smith’s compensation, even if Donald Trump returns to the presidency on January 20, 2025. This issue was actually litigated in a case involving General John J. Pershing, the commander of the American Expeditionary Force in World War I. U.S. v. Royer, 268 U.S. 394 (1925). General Pershing appointed an officer to a position that was not vacant, but the Court decided that Congress could not “claw back” the difference in pay between the status the appointee lawfully held and the one that he did not.