This is the third of three posts assessing Judge Aileen Cannon’s dismissal of an indictment against Donald Trump and his two co-conspirators because Jack Smith was unconstitutionally appointed as a special counsel.  This three-part series has focused on the appropriateness of the Judge’s wholesale invalidation of the Special Counsel’s action.

As noted in my initial post, I offer four conclusions. First, the implications of Judge Cannon’s approach are more far-reaching than she may have envisioned.  Second, the inflexible remedial rule Judge Cannon applied rests upon on readily distinguishable precedents, and disregards Buckley v. Valeo, 424 U.S. 1 (1976).  Third, Judge Cannon failed to properly apply the de facto officer doctrine so as to uphold the validity of Jack Smith’s actions, consistent with the doctrine’s historic rationale.  Fourth, under a more flexible remedial approach, several factors suggest that Judge Cannon should have pursued alternatives to dismissing the indictment.

In Part I, I summarized Judge Cannon’s opinion and laid out my first proposition.  In Part II, I addressed Judge Cannon’s opinions on its own terms, elaborating my second and third propositions.  In this part, I will outline a more flexible approach to remedying Appointment Clause violations and apply it to the alleged unconstitutional appointment of the Special Prosecutor.

General Thoughts on Remedies

Fashioning an appropriate remedy for Appointments Clause violations should involve recognition of competing imperatives: (1) providing incentives to raise Appointments Clause claims[1] and (2) minimizing harm resulting from judicial efforts to remedy the constitutional violation.  Judge Cannon focused on the former, without mentioning the latter.

At first blush, Judge Cannon’s curt dismissal of Office of United States Trustee v. John Q. Hammons Fall 2006, LLC, ––– U.S. ––––, 144 S. Ct. 1588, 1595 (2024) seems quite appropriate.  Remedying Equal Protection Clause challenges, by deciding whether to “level up” or “level down” disparate entitlements presents a distinctly different inquiry than remedying violations of constitutional provisions that bar certain actions entirely apart from any concerns about equality.[2]  Moreover, in addressing statutes that transgress constitutional boundaries, legislative intent, i.e., what Congress would have done had it been apprised of the constitutional deficiency, has long been considered critical.[3]  In addition, the constitutional violation here seems more momentous than that in Harms LLC, a short lived and quite small non-uniformity in bankruptcy fees.

Nevertheless, the Harms LLC Court did recognize the need to find a balance between remedying a constitutional violation and avoiding a remedy that would create excessive disruption and exact too great a toll.  It found that refunding the higher fees by some debtors would deprive the Bankruptcy Trustee Offices the fees were designed to support, of critical funds. Concomitantly, the Court concluded that requiring debtors who had already filed for bankruptcy to pay supplemental fees would present serious practical challenges. 

With respect to the practical difficulties attendant imposing supplemental fees, the Court observed that many of the fifty debtors in that group had already exited bankruptcy or ceased to exist.  Moreover, even if each former debtor or its successors could be located, “the Government would be forced to extract fees from funds that might already [have been] disbursed.”  Such collection efforts would likely, in turn, lead to “additional litigation and even the unwinding of closed cases.” Worse still, the burden of supplementing fees would fall upon third parties to constitutional challenge; third parties who had followed the law and had complied with the legislatively-mandated fee schedule extant when they had filed for bankruptcy.  As a result, the Court declined to address the fee disparity retroactively and merely mandated prospective uniformity.

Though providing adequate incentives to bring Appointment Clause is important, several countervailing factors warrant consideration in the case of remedying the Appointments Clause violation Judge Cannon found.

First, the challenge to Jack Smith’s authority does not involve any lack of authority to create the office of special counsel that Jack Smith occupied, but only the specific person designated by the Attorney General to occupy the position.  The point has been discussed earlier, see Remedying Appointment Clause Violations (Part II), and distinguishes this case from Lucia v. SEC, 585 U.S. 237 (2018) and Ryder v. United States, 515 U.S. 177 (1995).  And the violation is truly “technical,” precluding the appointment of a former, but not current, Department of Justice lawyer would seem to serve little purpose (and, indeed, reduces the credibility of politically sensitive investigations).   

Second, the prosecutorial function differs from the adjudicatory function.  While prosecutors might make some declinations or plea agreements that are, in some sense, final decisions (even though pleas must be approved by courts), seeking indictments and presenting criminal cases in court is not final.  The decisionmakers are really the grand jury, the judge, and the trial jury.  Thus, an invalidly appointed prosecutor does not so thoroughly infect a proceeding as an invalidly appointed adjudicator.  This point, as well, has been discussed at greater length previously, see Remedying Appointment Clause Violations (Part II). Note that even the frustration of a litigant’s due process right to ensure that a juror is impartial does not justify automatic invalidation of a trial verdict. In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), the Court, per Justice Rehnquist, reversed the Tenth Circuit’s decision to vacate a jury verdict and order a new trial when a juror had made mistaken, though honest, misstatements on a voir dire questionnaire. Justice Rehnquist explained that even though the error undermined plaintiff counsel’s exercise of his peremptory challenges, a litigant is merely “entitled to a fair trial,” “not a perfect one.” Id. at 533.

Third, the invalidation of the Special Counsel’s actions negatively impacts third parties.  The invalidation does not merely enable defendants to challenge indictments secured by the special prosecutor and perhaps challenge jury verdicts (which might largely be the extent of the impact of invalidating an improperly appointed adjudicator’s actions). Invalidating all of Jack Smith’s actions could derail cooperation agreements, plea deals, or declinations of prosecution non-defendants entered into with a special counsel who they reasonably believed possessed of appropriate authority.  See, Remedying Appointment Clause Violations (Part I).

Fourth, there is a strong argument of reasonable reliance here, combined with the complete lack of showing any prejudice from the invalid appointment.  Though infrequently invoked to appoint special prosecutors from outside the Department of Justice, Attorney Generals have been relying on the Supreme Court’s 1974 precedent, Nixon v. U.S., 418 U.S. 683 (1974), for nearly 25 years, since the Independent Counsel statute was permitted to lapse. Moreover, that position has generally been upheld against challenge.  Even assuming that Judge Cannon and Justice Thomas are correct about the non-binding nature of sub silentio rulings, the Attorney General’s reliance on a seminal Supreme Court opinion is entirely reasonable. (Indeed, the principle of statutory stare decisis suggests that if U.S. v. Nixon‘s implicit construction of the suite of critical statutes is to be disturbed, responsibility for doing so should be left to Congress. BRYAN A. GARNER, et al., THE LAW OF JUDICIAL PRECEDENT §33 (2016)(“stare decisis applies with special force to questions of statutory construction”).)

A word about the need to show prejudice is warranted.  To truly establish prejudice from an Appointments Clause violation, the challenger would have to show that a properly appointed officeholder might have proceeded differently – in this case that another Special Counsel would have decided to refrain from indicting former President Trump or his other two co-defendants (or to indict the trio on less serious charges).  But given Jack Smith’s required consultation with the Attorney General himself, the requirement that he follow DOJ policies, and his experience as a DOJ prosecutor handling public integrity cases, it seems unlikely that any prosecutor selected by Attorney General Garland would have proceeded differently.[4]

The problem with requiring such a showing of prejudice as defined above is the virtual impossibility of making that showing, dramatically undermining the incentives for mounting an Appointments Clause challenge.  Indeed, I have critiqued the Court’s decision in Collins v. Yellen precisely because it held that the acts of a person exercising powers with unconstitutional tenure protections can be invalidated only if the plaintiff establishes that the President refrained from removing the official due to the presence of the unconstitutional tenure-protection provision.  As I discussed, the rule creates an almost insurmountable hurdle.[5]  See, Bernard W. Bell, The Appointment and Removal Litigation Ecosystem, THE REGULATORY REVIEW (July 27, 2021).

When prejudice can be shown, of course, that would serve as a weighty factor in favor of invalidating the prosecutor’s actions. In many situations, including the one at issue, a lack of prejudice should be a factor in favor of upholding the prosecutor’s actions.  However, a showing of prejudice should not be required before an unconstitutionally-appointed official’s actions are invalidated.

For the reasons discussed above, some balance between invalidating Jack Smith’s actions and avoiding the disruptive consequences of such a course should be struck.  Such a balance could be achieved by allowing the Attorney General to select a DOJ lawyer to continue the prosecution, and then, either, ratify Jack Smith’s actions himself or permit Jack Smith’s successor to do so.  Even this, of course, opens up the prospect that third parties can be harmed adversely by a decision not to ratify Jack Smith’s actions. However, at least such consequences would not be mandated based on an inflexible rule imposed by a federal judge. 

Such an approach would provide some relief to the challenger, even if not the challenger’s “preferred form of relief.”  See Hammons. LLC, supra, 144 S.Ct. at 1596.  In addition, that more nuanced approach would reflect a reconciliation of Ryder and Buckley v. Valeo. Parties challenging a special prosecutor’s appointment, here Trump and his co-defendants, would obtain some relief, namely dismissal of prosecutor and re-evaluation of the dismissed prosecutor’s actions by a properly appointed prosecutor.  That would be consistent with Ryder’s interpretation of Buckley v. Valeo. At the same time that more limited remedy would avoid the potential disruption from judicial invalidation of all of the improperly appointed prosecutor’s actions, similar to the Buckley v. Valeo’s more forgiving remedial approach.

One final point that may be of interest to those with administrative law expertise, like many of the regular readers of this blog.  The potential remedial approach outlined above is akin, in some ways, to the practice of “vacatur without remand.”  On judicial review of an administrative agency’s actions, such as the promulgation of a regulation, courts have at times pronounced an agency action unlawful and remanded the matter to the agency for further consideration, but permitted the action to continue in effect in the interim.  See, Ronald Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 DUKE L.J. 291 (2003).

Conclusion

Since 1999, special counsels have been appointed from inside the Department of Justice, such as Patrick Fitzgerald, John Durham, and David Weiss, and more frequently from outside the Department, such as John C. Danforth, Robert Mueller, Jack Smith, and Robert K. Hur.  Their decisions have not always been universally popular, but they have served with great distinction, and in doing so enhanced the credibility of critical, politically sensitive investigations and prosecutions. Many will contest the soundness of Judge Cannon’s conclusion that Jack Smith’s appointment violates the Appointments Clause, and that special counsels can only be drawn from within the current ranks of the Department of Justice.  But even if that decision is correct, Judge Cannon’s analysis of her remedial options is flawed and could have quite harmful consequences.

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[1] Professors Fallon and Meltzer define the imperative to enforce constitutional constraints more precisely.  They note that constitutional remedies perform two functions: (1) “providing effective remediation to individual[s]” and (2) “ensuring governmental faithfulness to law.”  Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1789 (1991). With respect to the latter, they explain, a robust set of constitutional remedies ensures that “a regime of public administration” is never “systematically unanswerable to the restraints of law, as identified from a relatively detached and independent judicial perspective.”  Id.  The need to incentivize Appointments Clause challenges responds to that latter function of constitutional remedies.

[2] For one discussion of this issue see TRACY A. THOMAS, Leveling Down Gender Equality, 42 HARV. JOURNAL OF LAW & GENDER 177 (2019).

[3] This sort of issue is typically analyzed as a “severability” question, namely if one or more provisions of a statute are invalid, can they be severed from the statute’s remaining provisions, so that the remaining provisions can remain in effect.  See generally, WILLIAM D. POPKIN, A DICTIONARY OF STATUTORY INTERPRETATION 239-40 (2007) (using the terminology of “separabiity”).  The test governing severability questions (in the absence of a severability or inseverability clause), in the federal courts is Champlin Ref. Co. v. Corporation Comm’n, 286 U.S. 210 (1932).  Generally speaking, a statute is severable if: (1) the legislature would have enacted the remaining provisions of the statute without the invalid provisions, and (2) the remaining provisions of the statute can function independently of the invalid provision.  Id. at 234.

[4] Though Robert K. Hur, appointed as Special Counsel to investigate the unauthorized removal and retention of classified documents or other records discovered in President Biden’s office and home, reached a different conclusion, he explained that the gravity of any criminal violation was far less than Donald Trump’s alleged criminal violations.  Special Counsel Robert K. Hur, Report on the Investigation Into Unauthorized Removal, Retention, and Disclosure of Classified Documents Discovered at Locations Including the Penn Biden Center and the Delaware Private Residence of President Joseph R. Bden, Jr. 10-11 (Feb. 2024). Granted, Hur did observe that “with one exception [namely Donald Trump], there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration.”  Id.

Though Hur was previously the U.S. Attorney for the District of Maryland, at the time he was appointed special counsel he was in private practice at Gibson, Dunn & Crutcher.

[5] As noted earlier, most jurisdictions do not require a showing of prejudice, in the sense that a licensed assistant prosecutor would have performed any differently than an unlicensed one. See, Remedying Appointment Clause Violations (Part II), supra, at n. 14.