Gastonia, NC
“Technicality” is usually what people call a rule after they have decided they dislike what the rule is delaying. That is why I would not describe Monday’s ruling that way. The appointments question goes to who was authorized to wield federal prosecutorial power in the first place, and that is not decorative procedure.
Before the argument, two facts that most of the coverage has gotten wrong or left out.
The first is that this is not over. The special counsel filed a notice of appeal on Wednesday, two days after the ruling, and the case is headed to the Eleventh Circuit. Nothing about Judge Cannon’s holding is settled law. Anyone treating the dismissal as the final word is making the same error I have spent this Forum criticizing when it is made in the other direction.
The second is that her ruling is the first of its kind. Special counsel and independent counsel appointments have been challenged before and they have been upheld — the D.C. Circuit rejected an identical Appointments Clause attack on Robert Mueller’s appointment five years ago, and the Supreme Court addressed the Watergate special prosecutor’s authority half a century ago without finding the office unlawful. Judge Cannon acknowledged she was departing from that line. That does not make her wrong. It does mean that a person calling this an obvious constitutional defect has to explain why no court noticed it for fifty years, and a person calling it a fabricated pretext has to explain why Justice Thomas raised the identical question in a concurrence two weeks earlier.
That concurrence matters and it deserves more attention than it has received. When the immunity decision came down on the first of July, Thomas wrote separately to ask whether the special counsel’s office had been “established by Law” as the Constitution requires, and said the question needed answering before the prosecution went further. Two weeks later a district judge answered it. Whatever one concludes about the merits, that is a live constitutional question raised at the highest level, not a technicality manufactured by a friendly judge.
Now the argument.
I read copy for a living, so I am drawn to the grammar of the problem. “The United States prosecutes” sounds simple. The sentence hides an institutional subject. The United States acts through officers, and those officers must hold authority traceable to the Constitution and to statutes. The government relied on four provisions of Title 28 — general grants concerning the Attorney General’s functions, his power to delegate, his power to commission attorneys to conduct proceedings, and his authority over investigations. Judge Cannon held that none of them authorizes appointing a private citizen to an office with this much independent prosecutorial power. The government says the combination has always sufficed.
Reasonable lawyers can disagree about that, and the Eleventh Circuit will say so one way or the other. What is not reasonable is calling the question unserious.
The anti-lawfare context makes the issue more important rather than less. If a person believes the documents prosecution is part of a political campaign, then he should want the chain of authority to be boringly obvious. A prosecution of a former president and current political rival is the last place to say the appointment structure is close enough.
There is also an accountability point hidden inside the appointment question. Citizens should be able to identify who appointed the prosecutor, under what authority, who supervises him, who may remove him, and where Congress placed the office in law. Those answers make power visible, and visible power is easier to control than improvised power.
That is the real value of the ruling regardless of how the appeal comes out. Somebody made the government answer the question out loud, on a record, with briefing from outside parties, after a three-day hearing. That is what courts are for, and it is least popular exactly when the politics are hottest.
A technicality is a minor procedural point unrelated to the legitimacy of the power being exercised. Appointment is the opposite. It tells us why this particular person may speak for the United States in a criminal courtroom. If the Eleventh Circuit disagrees with Judge Cannon, the question will still have been worth asking.
Owatonna, MN
An office should exist before the case that makes the office convenient. That is the principle I take from Monday’s dismissal, and I want to defend it while correcting the reform that almost everyone attaches to it, including me until last week.
The reform people keep proposing is that Congress should write a statute. Create a clear special-counsel office. Specify appointment, jurisdiction, supervision, removal, and funding. Put it in law rather than leaving it to internal regulations and historical habit.
Congress did that. For twenty-one years.
The Ethics in Government Act of 1978 created an independent counsel with exactly that architecture — a statutory office, court-appointed, with defined jurisdiction and a removal standard designed to insulate the officer from the Attorney General. The Supreme Court upheld it in 1988 by seven to one, with Justice Scalia dissenting alone and warning that a prosecutor accountable to nobody would eventually be turned loose on political enemies. Then the country lived under it through Iran-Contra, through Whitewater, through the Starr investigation, and by 1999 both parties had concluded Scalia had been right. The statute was allowed to expire in June of that year with bipartisan relief, and the Justice Department adopted the current special-counsel regulations to replace it.
So the arrangement Judge Cannon found wanting is not an improvisation somebody reached for because the statute was too much trouble to write. It is what the country deliberately chose after twenty-one years of experience with the statutory version, precisely because the statutory version produced prosecutors nobody could restrain.
That does not resolve the constitutional question. If the regulations exceed what Title 28 authorizes, they exceed it regardless of why they were adopted. But it should change the confidence with which people recommend legislation as the obvious fix. The obvious fix was tried. It failed for reasons that have not gone away, and reviving it would mean re-creating an office the last generation of both parties agreed was worse than the problem it solved.
I tend to think in institutional time rather than campaign time. Campaign time asks whether Monday’s ruling helped Trump this month. Institutional time asks what rule will govern the next Attorney General and the next politically irresistible prosecution. On that longer clock the appointments question matters enormously, because a republic should be able to trace prosecutorial power: who appointed the officer, under what statute, with what supervision, subject to what removal.
Those are the address of government power, and they should not require a 93-page opinion to locate.
The special-counsel arrangement was created partly to solve a legitimacy problem. The Attorney General wanted distance from direct ownership of investigations involving the administration’s leading political opponent. I understand the instinct. But a mechanism designed to improve the appearance of independence should be especially careful about its own foundation, because you cannot cure one legitimacy problem by creating another.
That is why I find the accountability-delayed argument incomplete. Delay has costs — evidence ages, witnesses move, elections happen. The competing cost is normalizing prosecutorial offices whose authority becomes contested whenever a politically difficult case appears. That cost lasts longer.
I would also separate two things people keep merging. A defendant may have committed a crime and still insist the government prosecute through lawfully authorized officers. Those propositions do not conflict, and “technicality” usually means the defendant is probably guilty so why should this rule matter. The answer is that rules matter most when the defendant is unpopular and the accusation is compelling. Easy cases do not test constitutional discipline.
None of this is finished. The special counsel noticed his appeal on Wednesday and the Eleventh Circuit will take it up. If it reverses, the case resumes and the question will have been ventilated properly. If it affirms, the country will have to decide what structure it actually wants for these prosecutions, knowing that the statute it wrote in 1978 is not a candidate it liked.
Prescott Valley, AZ
Out here, authority is supposed to be visible before somebody starts exercising it. A brand inspector does not acquire power because the job seems useful and everyone agrees the problem is serious. That is why I read Monday’s dismissal as a reminder about structure rather than a technical delay — and why I want to teach the history alongside it, because the history is more interesting than the argument.
The vocabulary first, since it sounds technical and people mistake technical for trivial. The Constitution divides federal officers into two kinds. Principal officers require nomination by the President and confirmation by the Senate. Inferior officers may be appointed by the President alone, by courts of law, or by heads of departments — but only if Congress has said so by law. So the question in this case is whether Congress ever authorized the Attorney General to appoint someone like Jack Smith, and whether the office he occupies was established by law at all.
That is not a comma dispute. It is the difference between an office and an arrangement.
Now the part I would spend a full class period on. The country has already run this experiment, and it ran it for two decades.
After Watergate, Congress passed the Ethics in Government Act, which created a genuine statutory office: an independent counsel appointed by a special panel of judges, with defined jurisdiction and protection from removal. The Supreme Court upheld it in 1988. Justice Scalia dissented by himself, and his dissent is one of the great teaching documents in American law — he argued that an unaccountable prosecutor with unlimited time and a single target would inevitably find something, and that the office would be aimed at political enemies. By 1999 enough of both parties agreed with him that Congress let the statute die, and the Justice Department wrote the regulations that produced Mr. Smith’s appointment.
So when people say Congress should simply write the statute, the honest classroom response is: it did, we used it, and we repealed it on purpose.
That does not answer whether the current arrangement is lawful. It does mean the reform everyone is recommending has a record, and a student ought to know the record before recommending it. The choice is not between a clean statute and a sloppy improvisation. It is between two structures that each failed in a different direction — one too insulated to control, one perhaps too informal to authorize.
What I would want students to take from this is a habit rather than a conclusion. Structural rules are not less important because they operate before guilt or innocence is decided. They are important because they determine who may lawfully invoke the machinery that decides guilt or innocence. A rule does not become expendable when the defendant is controversial enough.
Two more things belong in an accurate account.
Judge Cannon’s ruling is the first of its kind. Prior challenges to special counsel appointments have been rejected, including a direct Appointments Clause challenge to Mr. Mueller’s appointment that the D.C. Circuit turned away five years ago. She acknowledged the departure. And the government has already appealed — the notice went in on Wednesday — so the Eleventh Circuit will now decide whether her reading of the statutes holds.
And her ruling did not touch the documents allegations. It held that the prosecutor lacked lawful authority to bring the case, not that the conduct was innocent. Those are different findings and a citizen should not confuse them.
So I would teach it as a reminder rather than a victory. A republic is not defined only by whether it reaches the right defendants. It is defined by whether it uses the right offices while doing so. Government power needs a legal address. Find the address, then bring the case — and if the address turns out to be one the country abolished a quarter-century ago, that is worth knowing too.
Dayton, OH
A plant does not let a contractor perform a first-article approval because he is competent and the schedule is late. Authority has to exist before the stamp means anything. That is how I read the appointments issue, and I want to be specific about what the government’s authorization actually rests on, because the argument is more concrete than the coverage suggests.
The Department did not claim a statute that says “the Attorney General may appoint a special counsel.” No such statute exists. It stitched the authority together from four general provisions of Title 28: one vesting the Department’s functions in the Attorney General, one letting him delegate them, one letting him commission attorneys to conduct grand jury proceedings and prosecutions, and one giving him authority over investigations. Judge Cannon held that none of them, alone or combined, authorizes appointing a private citizen to an office carrying this much independent prosecutorial power, and that the office was never established by law.
That is an authorization question, and in my trade authorization questions come before output questions. A process is not valid because the output looks plausible. Inputs, authority, calibration, and sequence all matter. If a critical approval is performed by somebody without authority to perform it, you cannot repair the defect by pointing to the quality of the part.
The government’s answer is that this stitching has been used for fifty years and that courts have consistently accepted it. That is a real argument and it is not merely an appeal to habit — repeated congressional acquiescence has legal weight, and the D.C. Circuit rejected the identical challenge to Mr. Mueller’s appointment in 2019. Judge Cannon’s opinion departs from that line and says so.
So the honest process description is: a long-standing arrangement, never squarely blessed by the Supreme Court on this precise question, challenged successfully for the first time on Monday, and appealed on Wednesday. Nothing is validated and nothing is invalidated yet.
The “technicality that delays accountability” argument assumes the only relevant output is a trial on the merits. Once you make that assumption, every threshold doctrine — appointment, venue, jurisdiction, immunity — looks like waste standing between the public and a preferred result. But constitutional systems are not optimized only for throughput. They are also designed for lawful authority, and that is the second metric on the chart.
The more politically consequential the case, the more rigorous the authorization control should be. A former president and current candidate is not the place to relax installation standards because the Department wanted a cleaner management structure. If a special counsel was necessary, the authority should have been explicit enough to survive hostile review, which is the equivalent of designing for worst-case load rather than nominal load.
The alternatives were available. The United States Attorney for the Southern District of Florida could have signed the indictment. Mr. Smith could have been appointed to a Senate-confirmed position. Each carries tradeoffs, and tradeoffs do not create appointment power.
I also want to record the sequence that produced this ruling, because it is unusual and it belongs in the account. Judge Cannon did not decide the question on the papers. She held a three-day hearing in June and took argument from outside parties on both sides of the issue, which is not standard practice on a motion to dismiss. Whatever one thinks of the outcome, the record was built rather than asserted.
And the dismissal did not reach the merits. It held that the prosecutor lacked authority, not that the retention allegations fail. If the Eleventh Circuit reverses, the case resumes on the same evidence. If it affirms, the Department has to decide whether an authorized officer can bring the same charges.
So my reading is a process warning rather than a verdict. Not that special counsels are unconstitutional. Not that this defendant is beyond reach. The warning is narrower: extraordinary prosecutorial power should have extraordinary clarity about its source, and if the government cannot validate the authority of the person holding the stamp, you stop the line and fix the authorization before you run more parts.
Wheeling, WV
If management fires a worker through a supervisor who never had authority to fire anybody, the company does not answer the grievance by saying the worker probably deserved it. Authority comes first. That is why I did not read Monday’s dismissal as a cheap technicality.
I spent years around labor relations, and half of discipline is who made the decision and whether that person had authority to make it. A real violation can exist and the discipline can still fail because management skipped its own structure. Government should be held to at least that standard.
Now the part I would want said before anybody in my camp starts celebrating, because I have watched people celebrate a grievance win that was still on appeal and look foolish six months later.
This is not over. The special counsel filed his notice of appeal on Wednesday, two days after the ruling. The Eleventh Circuit now has it, and that court is not obviously friendly ground for this holding. Every prior court to consider a challenge like this has gone the other way, including the D.C. Circuit five years ago on Mr. Mueller’s appointment. Judge Cannon knew she was breaking from that line and wrote ninety-three pages explaining why. Maybe the appeals court agrees with her. Maybe it does not. A man who declares victory on a district court ruling that is already on appeal is doing exactly what I criticized the other side for doing with the New York verdict.
That said, the question she forced open was worth forcing open, and I want to be clear about why.
What office did the special counsel hold? What statute let the Attorney General create it? Was he an inferior officer validly appointed under congressional authorization, or did the Department build more independence than the statutes support? Those are not easy questions. Easy questions are not what courts are for.
The people calling this a technicality mostly mean they dislike what the question did to the timetable. I understand that. Delay frustrates legitimate prosecution. But speed is not the only value in a republic, and if the government prosecutes a former president through a disputed office because the office is convenient, it has to live with a court asking whether the convenience was lawful. That is not sabotage. That is supervision.
The anti-lawfare background sharpens it. If the Department decided the ordinary chain of command was too politically exposed to own this case, and built a special structure to solve that problem, then it cannot complain when a judge examines whether the special structure was authorized. That is the bargain. You do not get the legitimacy benefit of independence without the burden of proving where the independence comes from.
Here is the labor lesson I keep returning to. Management hates procedure when it wants the discipline now. Later, when another manager uses the shortcut on somebody sympathetic, everybody remembers why the procedure existed. A special prosecutorial office built loosely for one defendant does not stay that defendant’s office. The next Attorney General will have the precedent, and then the people mocking the appointments issue this week may suddenly discover structure.
Better to discover it now, while the argument is still expensive to make.
My rule is simple. If the government wants to prosecute, use an officer whose authority traces cleanly to law. If the current structure is defective, fix it and proceed if the case can still proceed. That is not impunity. It is doing the paperwork before swinging the hammer.
A good grievance system does not ask only whether management had a reason. It asks whether management used the authority it actually possessed. That distinction is what keeps power from becoming personal, and it is worth defending even when the man it protects is one you would not have a beer with.
Tyler, TX
East Texas would not accept a bank officer signing a foreclosure if the bank could not show that officer had authority to bind the institution. The borrower’s default would not answer the signature problem. That is the appointments issue in plain terms, and it is the right frame even though the ruling itself is a long way from final.
Say the posture first. Judge Cannon dismissed on Monday. The special counsel noticed his appeal on Wednesday. The Eleventh Circuit has it, and every prior court to hear a challenge of this kind has rejected it, including the D.C. Circuit on Mr. Mueller’s appointment in 2019. So this is a district court opinion breaking new ground, on appeal, and it may not survive. Anybody treating it as settled is doing what I complained about when the New York verdict landed.
Now the test, which is the only tool I fully trust in a question this politically loaded.
Turn it around. A Republican Attorney General, facing a former Democratic president who is running again, decides the ordinary chain of command is too politically exposed to handle the case. He reaches into private practice, appoints a prosecutor nobody confirmed, gives him a budget and a mandate and substantial independence, and stitches the authority together from four general provisions of Title 28 that never mention the office he has created. That prosecutor indicts the former president in an election year.
Do I want a court to ask where the authority came from? Yes. Immediately, and before anything else happens. Would the people currently calling that question a technicality want it asked? I think they would ask it loudly, and I think they would be right to.
Since my answer does not change when I turn the names back around, I trust it.
I run commercial insurance and spent time in banking, and both trades run on authority chains, because institutions act through people. A policy is not issued because the company wanted it; a person with delegated authority signs it. A loan closes because authorized officers execute documents. When the authority is missing or disputed, the transaction is vulnerable no matter how sound the underlying credit was. That is why banks keep resolutions, delegations, and officer certificates — not bureaucracy for its own sake, but evidence that the institution acted through lawful hands.
Government power should not run on a looser rule than a community bank.
There is a risk-allocation point too, and it is the one I would press hardest. The Department chose this structure. It chose it for reasons that made sense from where it sat — distance from the Attorney General, insulation from the appearance of political direction. Fine. But having chosen the structure, the government owns the structuring risk. It should not shift that cost onto the defendant by arguing that a challenge to its own choice delays accountability. In my business, if we draft the instrument badly, we own the drafting error. The insured does not waive defects because enforcement is urgent.
What I would not say is that this makes anybody untouchable. Dismissal on appointment grounds does not reach the documents allegations. If the Eleventh Circuit reverses, the case resumes on the same evidence. If it affirms, the Department can consider whether a properly appointed officer can bring the same charges, subject to whatever limitations apply.
There is a distrust cost here that will outlast the litigation either way. A great many people already believe these prosecutions were politically engineered. A special prosecutor whose statutory footing becomes a major constitutional dispute feeds that belief even if the government ultimately wins on appeal. The cleanest cure is a structure nobody has to reverse-engineer from four general statutes and a set of internal regulations.
That is better underwriting for the institution than for any particular defendant, which is how you know it is the right rule.
Long Island, NY
I draft appointment instruments, and an appointment instrument is not ceremonial paperwork attached to power after the fact. It is part of the legal mechanism that creates the authority. That is why I regard Monday’s dismissal as a structural ruling rather than a trivial one — and why I want to set out the posture carefully, because the reporting has been imprecise in both directions.
The United States acts through officers. In criminal cases those officers exercise extraordinary powers: investigation, compulsory process, indictment, trial, and the possibility of imprisonment. The Constitution therefore specifies how officers are appointed. Principal officers require Senate confirmation. Inferior officers may be appointed by heads of departments only where Congress has by law vested that appointment power.
The government’s position is that four provisions of Title 28 supply that vesting, and that the arrangement has been used and accepted for half a century. Judge Cannon held that the provisions, read together, do not authorize the Attorney General to appoint a private citizen to an office of this character, and that the office was not established by law. She wrote ninety-three pages, held a three-day hearing in June with argument from outside parties, and acknowledged that she was departing from every prior decision on the question.
Two of those prior decisions matter and neither has been mentioned much. The Supreme Court addressed the Watergate special prosecutor’s authority in 1974 without finding the office unlawful. And in 2019 the D.C. Circuit rejected an Appointments Clause challenge to Robert Mueller’s appointment in materially the same posture, holding the same statutory provisions sufficient. Judge Cannon’s opinion is the first to go the other way.
The third fact that changes the significance of all of this: on the first of July, in the immunity decision, Justice Thomas wrote separately to question whether the special counsel’s office had been established by law, and said the issue should be resolved before the prosecution proceeded. Two weeks later a district judge resolved it in the negative. That sequence is why the ruling is being read by some as opportunistic and by others as responsive. It is at minimum evidence that the question was live at the highest level, not conjured in Fort Pierce.
And on Wednesday the special counsel appealed, so the Eleventh Circuit will now decide it.
That is the accurate posture. A first-of-its-kind district ruling, contrary to prior appellate authority, on a question a Supreme Court justice had flagged three weeks ago, now on appeal.
The rhetorical response — that special counsels have been used before, that the Department needs mechanisms for politically sensitive investigations, and that disruption delays serious allegations — concerns prudence and history. Those are real considerations and repeated practice genuinely informs constitutional meaning. But practice cannot substitute indefinitely for a clean statutory foundation once the office’s status is squarely contested, and it has now been squarely contested.
The context matters. The special counsel was appointed to handle matters involving the incumbent administration’s principal political opponent, and the structure was designed partly to create institutional distance. That goal is understandable. But distance from political leadership creates its own constitutional question: if the officer is independent enough to solve the conflict problem, what exactly is the office, who appoints it, and what statute authorizes the arrangement? Independence has to be located somewhere in law.
“Technicality that delays accountability” is therefore too results-oriented. It assumes the destination matters more than the legal status of the person driving. Constitutional law often asks who may act before asking whether the action is desirable, and the sequence is not accidental. It prevents necessity from becoming its own grant of power.
I would also not collapse dismissal into immunity. A defect in the prosecutor’s appointment does not answer the merits of the underlying conduct. Depending on how the appeal resolves and what the governing law permits, the government may be able to proceed through another officer. A defendant can be subject to law while insisting that the government use lawful officers, and there is nothing contradictory in that.
The rule is simple even where the doctrine is not. Government power must have a visible legal pedigree, and a prosecutor does not acquire legitimacy because the allegations are serious or the public is impatient. Those are precisely the circumstances in which pedigree matters most.
Cheyenne, WY
Who holds the pen is not a footnote. That is my answer, and I want to give it with the qualifications that make it honest rather than triumphant.
The documents allegations can be serious. The prosecutor still has to have lawful authority to bring the case. Those are separate entries and they do not net against each other.
Now the entries people are leaving out of the ledger this week.
The ruling is on appeal. The special counsel filed his notice on Wednesday and the Eleventh Circuit has it. Nothing is closed. Judge Cannon’s opinion is also the first of its kind — every earlier court asked this question about a special counsel answered it the other way, including a federal appeals court on Mr. Mueller’s appointment five years ago. She said so herself in the opinion. So this is a new position in the account, not a confirmed balance, and I am not going to book it as one.
The other entry worth recording is that a Supreme Court justice raised the same question three weeks ago. When the immunity decision came down on the first, Justice Thomas wrote separately asking whether this office had been established by law and said the question needed answering. That does not make Judge Cannon right. It does mean the issue was on the table before her ruling, which is a different thing from being invented for it.
I keep books, and the discipline here is straightforward. A valid invoice signed by someone without signing authority creates an authorization problem even when the amount is correct. The amount does not decide who may approve it. In accounting we set authority limits by size — a small expense and a large transfer require different signatures — because the bigger the power, the clearer the authorization should be.
A federal criminal prosecution of a former president is not a small transaction. If the authority for it depends on a disputed reading of four general statutes plus internal departmental regulations, that is exactly the kind of thing a court should test before the case goes further. That is not softness toward the defendant. It is a control on government.
There is an item on the other side and I want to post it rather than let somebody else find it. The Department did not invent this arrangement for this case. It has been used for decades, by administrations of both parties, against targets of both parties, and courts have consistently accepted it. Whatever else is true, nobody built this office in 2022 to reach one man. It was already there, and the question is whether it was ever properly there.
What I would like is for Congress to settle it. Say who appoints, who supervises, who may remove, how it is funded, what jurisdiction it carries. Put it in the law so the next prosecutor does not begin by defending his own existence.
I have learned since I first said that, though, that Congress already tried. There was a statute from 1978 creating an independent counsel with all of those specifications, upheld by the Supreme Court in 1988, and Congress let it expire in 1999 because both parties had decided the office it created could not be controlled. So the reform I want has a history, and the history is not encouraging. If Congress writes another one, it has to solve the problem that killed the last one.
That is still better than the current arrangement, where the authority has to be assembled from provisions that never mention the office.
So no, I do not call the ruling a technicality. A technicality is small. Authority is not small. If the appeals court reverses, the case resumes and the question will have been aired properly. If it affirms, the Department has to find an authorized officer or accept that it cannot bring the case, and that would be the cost of getting the structure wrong.
The Constitution is allowed to impose costs. That is part of what it is for. Authority is the first control, evidence comes second, the case comes third, and that sequence protects future prosecutors as much as it protects this defendant — nobody should have to defend his own existence while trying the merits.
