Case dismissed

The power to criminally prosecute is the power to fundamentally alter someone’s whole existence. Being charged with a crime becomes the central fact of your life while a case is pending. It consumes tens or hundreds of thousands of dollars in legal fees, much of your time, and all of your emotional energy. And that’s regardless of the outcome—as the old saying goes, even if you’re acquitted, where do you go to get your reputation back?

Because the power to prosecute is so great, we put in place democratic safeguards for chief prosecutors. Each of the 93 U.S. attorneys is appointed by the president and confirmed by the U.S. Senate as the chief federal law enforcement officer over a given region. Except, that is, for special counsels like former President Donald Trump’s prosecutor, Jack Smith. According to U.S. Department of Justice regulations, Smith is invested “with the full power and authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Yet Smith is not appointed by the president nor is he confirmed by the Senate. Rather, he was appointed by U.S. Attorney General Merrick Garland outside the normal process for choosing prosecutors. According to U.S. District Judge Aileen Cannon on Monday in the case of President Trump’s handling of classified documents, that violates fundamental constitutional guarantees.

The U.S. Constitution requires that principal officers, like Cabinet secretaries or the leaders of large sub-Cabinet agencies, be appointed by the president and confirmed by the Senate. This is an important operation. Inferior officers may be appointed by Cabinet secretaries when the law so provides. Personally, I think Smith is a principal officer because he acts with the same powers as a U.S. attorney. But Judge Cannon does not even reach that step because special counsels are not even provided for by law.

In fact, quite the opposite. Readers will recall that in the 1990s we had a rash of “independent counsels,” most famously Ken Starr of the Whitewater investigation. But Congress intentionally chose to let that law expire, deciding that “independence” from political accountability was not such a good thing after all. Yet now, as Judge Cannon notes, the “special counsel” policies of the Justice Department essentially circumvent the policy choice of Congress not to renew that statute. The law no longer provides for independent or special counsels, so the Justice Department decided just to create such a position ex nihilo and endow it with the powers of a U.S. attorney but without the democratic safeguards associated with a U.S. attorney.

None of this is to say that Trump didn’t mishandle classified documents. He’s not been found innocent or guilty. Judge Cannon is dismissing the charges because the prosecutor is fundamentally flawed as a representative of the U.S. government.

This reflects a deep American value: due process. We are (thank God) no longer a nation of lynch mobs and we were never a nation with guillotines. We regularly let guilty people go free for crimes they most certainly committed because the police screwed up the investigation. In too many cases, the police didn’t get the right search warrant, didn’t read Miranda rights before a confession, or didn’t let the arrestee call their attorney. We have a deep cultural resonance from a dozen different police procedural TV shows and a hundred movie scenes about due process. It’s been part of who we are at least since John Adams defended the British soldiers who fired on the crowd in the Boston Massacre.

And one core element of due process is a duly selected prosecutor. We do not let just anyone wield the awesome power of the state. We do not let private individuals haul other private individuals into criminal court. We insist on democratic safeguards like election (for local prosecutors) or presidential appointment and Senate confirmation (for federal prosecutors). With her ruling, Judge Cannon protects that due process principle. The accused here, President Trump, is entitled to a fair process, and one integral element of a fair process is a democratically accountable, constitutionally selected prosecutor.

Cannon’s ruling will no doubt be appealed, but I expect higher courts to agree. Justice Clarence Thomas already previewed his views on this issue in his concurring opinion in the Supreme Court’s immunity decision a few weeks ago. Constitutional structure and due process matter—they are core to our legal system, and they deserve our respect.