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Download the Viator app now to use code Viator10 for 10% off your first booking in the app. Regret less. Do more with Viator. Hey folks, Bart McQuaid here. I'm the former U.S. Attorney for the Eastern District of Michigan and a law professor at the University of Michigan. This is a recording of my latest Cafe note, The Mission of Justice. As always, please write to us with your thoughts and questions at lettersatcafe.com.
Dear listener, the first mission of any organization is to protect the mission. When you're the Attorney General of the United States, corny as it may sound, that mission is justice. Last week, Judge Aileen Cannon dismissed the indictment charging Donald Trump in the classified documents case, finding that the appointment of Special Counsel Jack Smith was unconstitutional. The dismissal presented Merrick Garland with a decision.
Dump the special counsel and reassign the case to a Department of Justice lawyer or stay the course and file an appeal. But the quickest path to trial may not be the one that best preserves important institutional interests of justice. Judge Cannon's opinion was most certainly an outlier, rejecting the prior decisions of every other court to speak to the issue, including the U.S. Supreme Court.
Under Cannon's view, the appointments of Robert Mueller to probe Russian election interference and Robert Herr to investigate Joe Biden must likewise be illegal, though her decision is not binding on any other court. She found that Garland's appointment of Smith without Senate confirmation was invalid under the Constitution's Appointments Clause.
Judge Cannon reached that conclusion despite a federal statute that says the attorney general may, from time to time, make such provisions as he considers appropriate, authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the attorney general. So much for textualism.
The dismissal means that this case, like two other pending criminal matters against Trump in Georgia and Washington, D.C., will most certainly not go to trial before the election. This case, alleging unlawful retention of national defense documents and obstruction of justice, offered perhaps the clearest path to conviction.
And if Trump is elected president in November, it seems likely that he will appoint an attorney general who will dismiss the case, along with the election interference case in D.C. Of course, the reason Garland appointed a special counsel was to add a measure of independence into the investigation of a candidate seeking to unseat President Joe Biden at whose pleasure Garland serves.
Federal regulations provide that a special counsel should be appointed when an investigation may present, quote, a conflict of interest for the department or other extraordinary circumstances, end quote.
Perhaps the most efficient option and the quickest path to trial for Garland now would be to dispense with the special counsel and reassign the case to another prosecutor at the Justice Department. Lawyers at DOJ's National Security Division, the Public Integrity Section, or even a U.S. Attorney's Office could present the case to a new grand jury and obtain a new, albeit identical, indictment. Problem solved.
To avoid any interruption in continuity, Garland could even hire Smith and his team to staff the case, though they would be supervised by the presidentially appointed and Senate-confirmed head of the component leading the case. One downside to that approach, however, would be that the case would likely remain assigned to Judge Cannon, who has shown hostility to the government's case from its inception when she accepted Trump's civil challenge to the execution of a search warrant at his home.
Like most districts, the Southern District of Florida has local rules that assign cases to judges when they have handled cases in the past that are based on the same subject matter. The indictment could be filed in a different district, such as the District of Columbia or the District of New Jersey, where some of the conduct occurred. Filing outside of the Southern District of Florida would avoid Judge Cannon, but would expose DOJ to litigation risk over venue and to accusations of form shopping.
Instead, DOJ has chosen the more direct route, appealing Judge Cannon's decision to the 11th Circuit Court of Appeals. While an appeal may be the slowest route to trial, it's perhaps the one best suited to protecting the mission of justice.
This option gives Smith the opportunity to ask the appeals court to not only reverse Judge Cannon's opinion, but to also reassign the case to another judge based on her appearance of bias against the government. While exhausting appeals will certainly mean that the case will not go to trial before the election, none of the other options will result in a trial before then anyway.
If Smith is successful in the 11th Circuit, Trump no doubt would appeal the case to the U.S. Supreme Court, delaying final resolution even further. But the most important reason this option is best is that it allows DOJ to defend the constitutionality of special counsels. Even though Judge Cannon's opinion is not binding on any other court, it could taint the public perception of the legality of special counsels, undermining the very purpose of the office—
If special counsels were to fall out of use, we would lose an important mechanism for independent investigations into criminal wrongdoing by high-level political insiders. In light of the Supreme Court's recent decision in Trump versus United States, finding a president immune from criminal prosecution for official acts that constitute core constitutional duties, a special counsel becomes all the more necessary.
Without the appointment of Mueller, for example, it would have been up to Trump's attorneys general, first Jeff Sessions and then William Barr, to expose the misconduct of Roger Stone, George Papadopoulos, Paul Manafort, Rick Gates, Michael Flynn, Michael Cohen, and other Trump allies. Even though Trump ultimately granted clemency to most of them, their conduct would have remained unknown to the public without the appointment of a special counsel.
The Cohen case led to the investigation and conviction of Trump in Manhattan for falsifying business records to conceal information from voters ahead of the 2016 election. It seems unlikely that we would have learned about any of those facts or that Trump would ever have been held to account if Bill Barr had been calling the shots.
The special counsel is an institutional interest that Garland must preserve if he is to leave DOJ as strong as he found it. Obtaining an order from the 11th Circuit, reversing Judge Cannon's decision is essential to the mission of justice. Stay informed, Barb.
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