Left: Donald Trump (AP Photo/Julia Nikhinson, Pool); Center: U.S. District Judge Aileen Cannon (U.S. District Court for the Southern District of Florida); Right: Justice Clarence Thomas speaks at the Heritage Foundation on Oct. 21, 2021 in Washington, D.C. (Photo by Drew Angerer/Getty Images).
As Donald Trump celebrated the news that his first federal indictment was dismissed by U.S. District Judge Aileen Cannon on the first day of the Republican National Convention, another prominent right-wing figure was likely pleased with the method used to toss the case.
In the sprawling, 93-page order granting the motion to dismiss, the court cites U.S. Supreme Court Justice Clarence Thomas five times.
None of Cannon’s reliance on Thomas comes from a majority opinion authored by the conservative jurist. And three of those citations are from his unjoined concurrence to the recent Supreme Court case that granted Trump wide-ranging post-presidential immunity.
As Law&Crime previously reported, the Thomas concurrence was essentially a roadmap for the final course Cannon took in blowing up special counsel Jack Smith’s prosecution of the 45th president.
Notably, Thomas was the only justice to cite the long-simmering Appointments Clause issue in an unfavorable light for the government in any of the opinions on Trump v. United States. The majority opinion lists, offhandedly, several ways in which the appointments power inures to the executive’s benefit. Thomas is also the only justice to mention the phrase “Appointments Clause” directly.
Thomas’ concurrence largely echoed arguments made by conservative amici curiae (Latin for “friends of the court”) on the Mar-a-Lago case docket. Somewhat controversially, Cannon recently heard oral arguments from several groups of amici regarding the legality of Smith’s appointment as special counsel.
Those amici asserted “private citizen” Smith’s appointment by U.S. Attorney General Merrick Garland violated the Constitution because he was neither confirmed by the Senate nor sufficiently “authorized” by statute. Trump and his co-defendants, for their part, made similar objections to Smith’s role and funding in various defense motions.
And, though Trump v. United States was not about the Mar-a-Lago case, Smith and his office were implicated because he is the special counsel who brought and led both prosecutions.
Smith attempted to preempt exactly what happened. Last week, he filed a brief notice of supplemental authority making the point that Thomas stood alone in his concurrence. In the end, Cannon was more persuaded by Thomas’ legal arguments than Smith’s appeal to the value of binding precedent.
More Law&Crime coverage: ‘That single-Justice concurrence’: Jack Smith chides Clarence Thomas for ‘not relevant’ SCOTUS dicta on Trump immunity, agrees to new Mar-a-Lago hearing on the issue
In her order putting the kibosh on the Florida case, Cannon first cites Thomas by quoting former justice David Souter’s concurrence to a 1994 high court opinion about the Appointments Clause.
In that earlier concurrence, Souter mentions the “manipulation of official appointments” by the pre-revolutionary English crown and the Framers’ post-revolutionary experience with state legislatures that led them to believe “lodging the appointment power in the President alone would pose much the same risk as lodging it exclusively in Congress: the risk of an incautious or corrupt nomination.”
Cannon frames these combined concerns as related to the “English monarchy” and simply drops in a page number citation to Thomas’ 9-page concurrence without quoting him directly.
Here’s what Thomas’ concurrence says about the monarchy:
The limitation on the President’s power to create offices grew out of the Founders’ experience with the English monarchy. The King could wield significant power by both creating and filling offices as he saw fit. He was “emphatically and truly styled the fountain of honor. He not only appoint[ed] to all offices, but [could] create offices.” …
That ability to create offices raised many “concerns about the King’s ability to amass too much power”; the King could both create a multitude of offices and then fill them with his supporters …
In fact, one of the grievances raised by the American colonists in declaring their independence was that the King “ha[d] erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” The Founders thus drafted the Constitution with “evidently a great inferiority in the power of the President, in this particular, to that of the British king.”
The Founders broke from the monarchal model by giving the President the power to fill offices (with the Senate’s approval), but not the power to create offices.
For her second reference to the Thomas roadmap, Cannon cites a part of the concurrence dealing with a federal statute: 28 U.S.C. §515.
That statute reads, in relevant part:
The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought
Again, the order foregoes a direct Thomas quote.
Instead, Cannon writes, in a footnote: “To the extent Special Counsel Smith insinuates that ‘under law’ in Section 515(a) does not require what it plainly says — that special attorneys must be appointed by the Attorney General under statutory law — no basis is provided for that atextual suggestion.” This sentence is followed by another simple citation to the relevant portion of Thomas’ concurrence.
Thomas, for his part, gives similarly short shrift to the law’s upshot: “Section 515 contemplates an ‘attorney specially appointed by the Attorney General under law,’ thereby suggesting that such an attorney’s office must have already been created by some other law.”
More Law&Crime coverage: A question Justice Thomas posed during Trump immunity arguments cited in Mar-a-Lago case as conservative AGs, Scalia clerk challenge Jack Smith’s authority
The third reference to Thomas’ immunity opinion concurrence comes in the context of the statutory discussion — which includes Section 515 and a handful of other Justice Department-related statutes.
“To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, but it provided no analysis of those provisions’ text,” Thomas wrote.
That reference to the United States v. Nixon opinion — which unanimously directed Richard Nixon to surrender the Watergate tapes — was no accident.
In briefing the Appointments Clause issue, Trump and the conservative amici on one side argued the opinion did not really address the subject; Smith on the other hand argued the opinion necessarily came down on the issue — and in the government’s favor.
Thomas, of course, expressed doubt. Cannon, in turn, took this musing concern about the precedential value of the Nixon opinion and ran.
“Defendants argue that Nixon’s statement about the Attorney General’s statutory authority is non-binding dictum and thus should not control the Court’s statutory analysis,” the dismissal order reads. “The Special Counsel argues that this statement ‘formed a necessary element of [Nixon’s] holding,’ and therefore constitutes binding precedent. Following a comprehensive review of the Supreme Court record, the Court concludes that the disputed statement from Nixon is dictum. The issue of the Attorney General’s appointment authority was not raised, briefed, argued, or disputed before the Nixon Court.”
In a somewhat odd stylistic choice, Cannon’s order twice uses the U.S. Reports-style method of citing Thomas’ immunity opinion concurrence. Once, however, for reasons unclear, Cannon uses the Westlaw citation format to refer to Thomas’ concurrence.
Matt Naham contributed to this report.
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