Judge Cannon throws out Trump's classified docs case.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

What do you want to know?

In light of recent events, this Friday we are going to do a deep dive on the Secret Service. If you have questions about the Secret Service or its history that you want answered, feel free to write to staff@readtangle.com with the subject line "Secret Service questions," and we'll do our best to dig in.

Quick hits.

1. U.S. Senator Bob Menendez (D-NJ) was convicted on all counts of accepting bribes of cash, gold, and a luxury car from three New Jersey businessmen. (The conviction)
2. Secret Service officials said that former President Donald Trump had recently received increased security detail due to an Iranian assassination threat, which was believed to be unrelated to Saturday's assassination attempt. (The intel)
3. An Israeli airstrike reportedly killed over 60 people in southern and central Gaza. One of the strikes hit a "safe zone," according to the Associated Press. (The strikes)
4. President Biden is expected to announce support for major Supreme Court reforms this week, including term limits and an enforceable ethics code. (The proposals) Separately, Biden proposed capping rent hikes at 5% on approximately 20 million existing apartment units for the next two years. (The plan)
5. California Gov. Gavin Newsom (D) signed a bill banning school districts from notifying parents if their child uses different pronouns or identifies as a different gender than their school record. (The law)

Today's topic.

The dismissal of Trump’s classified documents case. On Monday, Judge Aileen Cannon dismissed the Department of Justice’s case against former President Donald Trump for illegal retention of classified documents. 

Back up: In November 2022, Attorney General Merrick Garland appointed Jack Smith as special counsel to oversee two separate investigations of Trump, one pertaining to alleged efforts to interfere with the 2020 presidential election and the other relating to classified documents. In June 2023, Smith indicted Trump on 37 counts of seven different charges, including willful retention of national defense information, false statements, conspiracy to obstruct, and withholding classified records. The case was brought in the U.S. District Court of Southern Florida, where Judge Cannon was assigned to preside over it.

Cannon has been criticized by the left throughout the case for her inexperience and potential lack of impartiality, and two federal judges privately urged her to decline the case when it was assigned to her. Most recently, Cannon sparked controversy over her decision to indefinitely postpone the trial, originally scheduled for May.

You can read our coverage of Cannon’s indefinite postponement in May here, and our coverage of the initial charges here.

What just happened: In a 93-page ruling, Cannon agreed with arguments advanced by Trump’s legal team that Special Counsel Jack Smith was improperly appointed to his position. The defense argued in February that the Constitution’s Appointments Clause does not grant the Attorney General the power to appoint a special counsel without Senate approval. Cannon granted a delay to hear pretrial arguments in May, heard the constitutional appointment argument in June, and released her decision this week.

The Appointments Clause requires that “Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States” be appointed by the president subject to the consent of the Senate, although Congress may vest the appointment of “inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Judge Cannon found Smith’s appointment a violation of this clause. "The Special Counsel's position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers," Judge Cannon wrote on Monday.

The Justice Department said it will appeal the ruling to the 11th Circuit in Atlanta, which issued a rebuke against Judge Cannon two years ago over her decision to appoint a special master to review the documents seized from Trump’s Mar-a-Lago residence. Even if the 11th Circuit upholds Cannon’s decision, the ruling still leaves open the possibility for a separate case against Trump to be brought under another prosecutor approved by the Senate. Regardless of the outcome of the appeal, the additional delay ensures the case won’t be decided prior to the election.

Below, we’ll get into what the left and right have to say about Cannon’s decision, then I’ll give my take.

What the left is saying.

• The left is outraged by the decision, calling it legally dubious. 
• Some argue Cannon’s reasoning fails on both legal and historical merits.
• Others say Cannon is taking cues from the Supreme Court’s conservative justices.

In Newsweek, Thomas G. Moukawsher wrote Cannon’s decision “begs to be overruled.”

“Cannon's ruling seizes on the latest in a series of substance-less assaults Trump has made on every case brought against him. So far, she has been the only judge foolish enough to buy one of them… Cannon has relied on a subjective opinion that this job is too important to appoint under the authority invoked by the Attorney General. Cannon emphasized that the law allowing special counsel to be appointed says they must be specially appointed ‘under law,’” Moukawsher said. “Nonsense. A specific additional law does give the attorney general the power to ‘appoint officials to detect and prosecute crimes against the United States.’”

“The judge relies on ritualistic twisting and turning around word meaning. What is an ‘official?’ Cannon agrees that sometimes an official means someone chosen from outside an organization as well as from within. But, of course, not in this case. In this very special case, in Cannon's opinion, officials don't include outsiders because other lower-level people like FBI agents can be appointed under the authority Smith cites,” Moukawsher wrote. “​​If judges are just supposed to look at the words of a law and do what they say, Cannon's castration-by-association approach is pretty weak. It means the association of the special prosecutor words with other provisions about the FBI mean the words don't mean what they say. So much for textualism.”

In The Atlantic, Paul Rosenzweig suggested Cannon “is ignoring both practical history and legal precedent.”

“On the merits, her opinion is a poor one, ignoring history and precedent. It will almost certainly be reversed on appeal… But Cannon’s opinion is even more significant for what it says systematically about the American judiciary and its increasing hubris. Donald Trump is famous for saying that he ‘alone can fix’ the nation. Judges now routinely say that they ‘alone’ know what the law is or should be. Cannon is just the latest, perhaps most egregious, example,” Rosenzweig said. “Worse yet, in her hubris, Cannon disregards both history and precedent.”

“The first special counsel ever was appointed during the Grant administration to investigate the Whiskey Ring scandal. Since then, literally dozens of special counsels have been designated by the attorneys general, including those investigating Watergate, and, most recently, by Trump’s own Department of Justice,” Rosenzweig said. “As to precedent, during the investigation of Richard Nixon, the Supreme Court explicitly acknowledged the power of the attorney general… Her rejection of 150 years of history and the considered judgment of other courts is the paradigmatic example of a jurist substituting her own judgment for that of an earlier era.”

In The Boston Globe, Nancy Gertner said Cannon’s decision “follows Justice Clarence Thomas’s unethical lead.”

“On July 1, Supreme Court Justice Clarence Thomas wrote a lengthy concurring opinion in Trump v. United States making it clear that he thought the special counsel was appointed unlawfully and lacked authority to bring cases against Donald Trump. US District Judge Aileen Cannon, presiding over the classified documents case in Florida, got the message loud and clear. All she had to do was ignore precedent and put the Southern District of Florida heading on Thomas’s concurring opinion… Poof! The case against Trump for wrongfully retaining some of the most sensitive of our national defense secrets was gone.”

“Thomas’s opinion was a great first draft. And what better time to issue the decision than the day Republicans were starting their nominating convention, allowing them to crow about Trump-appointed judges who delivered for him — including Cannon,” Gertner wrote. “The only good news from Cannon’s ruling is that she decided it. That will allow an appeal by the Justice Department to the 11th Circuit Court of Appeals which is likely to reverse her; they too are bound by precedent. Since this would be her third reversal — they reversed her bizarre rulings before Trump’s indictment — they could finally remove her as they have done in other cases.”

What the right is saying.

• The right mostly supports Judge Cannon’s reasoning, arguing she made a strong case that Jack Smith’s appointment was unconstitutional.
• Some say the decision serves as a check on Biden’s Department of Justice.
• Others say the case is in shambles even if Cannon’s ruling is reversed.

In National Review, Dan McLaughlin wrote “Trump dodges another bullet: Jack Smith.”

“Expect a chorus of incredulity at Judge Cannon’s thorough 93-page opinion, which reaches a conclusion embraced by Justice Clarence Thomas in a concurring opinion in the immunity case,” McLaughlin said. “In short, the argument goes like this: First, the power to initiate and prosecute criminal cases in the name of the United States is an executive power that can only be exercised by an ‘officer of the United States.’... Second, there are two ways to become an officer, and many positions meet both of them: You can be appointed by the president with Senate confirmation, or your position can be created by statute.”

“Third, many special counsels, such as David Weiss (the special counsel for Hunter Biden), are already officers of the United States because they are currently serving as U.S. Attorneys. Because of this, there have not been a lot of serious challenges to their appointments. But Smith was a private citizen when appointed. Fourth, Smith isn’t appointed by Biden. He isn’t Senate-confirmed. So, he can be an officer only if some law created his position. Fifth, it didn’t. Smith’s role is created only by regulations issued by the attorney general… Unlike the old Independent Counsel statute, there is no special-counsel law.”

In Fox News, Gregg Jarrett called the decision “a rebuke of Biden's out-of-control DOJ.”

“It never made sense or seemed right. With the wave of a wand, a private citizen was granted unlimited power to prosecute a former president of the United States… Smith and the Department of Justice (DOJ) will likely file an immediate appeal to a higher court. But Cannon’s well-reasoned 93-page opinion establishes a clarifying record of sound legal judgment that will be difficult to overcome,” Jarrett said. “At the heart of the federal judge’s decision is the Appointments Clause of the Constitution which provides the exclusive means for selecting all ‘Officers of the United States.’ They must be appointed by the president and confirmed by the senate. Smith failed both requirements.”

“How is it possible that an attorney general could vest in a private citizen the immense and unchecked power of a U.S. Attorney when, in fact, Smith is not and never was? His role is not to assist an approved U.S. Attorney but replace one entirely,” Jarrett wrote. “The erosion of Jack Smith’s misbegotten prosecutions represents an important course correction in the increasingly abusive tactics employed by President Joe Biden’s Justice Department and his sycophantic attorney general.”

In USA Today, Jonathan Turley said “it was not the law but the lawyer who proved to be the problem.”

“The Biden administration has argued that even asking about its authority is as absurd and frivolous as asking about ravens and writing desks. It notes that most courts have dismissed these claims with little argument or consideration. Yet, Cannon kept coming back to the question: Why is a private citizen like a confirmed U.S. attorney,” Turley wrote. “Cannon found the question neither frivolous nor easy… Cannon noted that ‘there does appear to be a ‘tradition’ of appointing special-attorney-like figures in moments of political scandal throughout the country’s history. But very few, if any, of these figures actually resemble the position of Special Counsel Smith.”

“Jack Smith was himself the argument that would bring down his case — at least for now… The appointment question has good-faith arguments on both sides, which Judge Cannon acknowledged in her detailed opinion. She could be reversed on appeal, but this issue seems likely to go to the Supreme Court,” Turley said. “The problem for Smith is now another question worthy of the Mad Hatter: What can crawl and fly with only hands but no legs or wings? The answer is the one thing that Smith no longer has: time.”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• I think it’s an oversimplification to say Cannon is just trying to protect Trump, although she has made a series of indefensible decisions in this case.
• Many courts have found that attorneys general have the authority to appoint special counsels.
• It’s a genuine shame that, due to Cannon’s decisions, this case will not be resolved before the election.

Earlier this week, I wrote about one of the difficult parts of this job: Writing with compassion while also not extending the assumption of best intentions to people who may not deserve it. I have tried not to fall into the belief that Cannon is simply rewarding Trump for appointing her, and I've been very skeptical of that extreme argument against her. But her actions in this case have been suspicious and at times inexplicable, and with each cascading event it becomes harder and harder to find other reasonable explanations for her decisions.

Very briefly, I'll do my best to explain why I think this decision is wrong in the simplest possible terms:

1. Every employee of the executive branch has to be either confirmed by the Senate or appointed to an inferior office as authorized by Congress. Jack Smith is not Senate-confirmed, but there is a statute that allows him to hold his position, just as it allowed all special counsels that came before him.
2. The Supreme Court has upheld the constitutionality of those special counsels repeatedly. Cannon, a district court judge, is duty bound to respect the court's rulings. She found a clever way to ignore previous rulings related to this question (which I don’t buy and will explain in a second), but her argument would only matter if the Supreme Court made it. Cannon is not respecting court rulings; she is ignoring decades of Supreme Court precedent.
3. A lot of people are noting that in a recent Supreme Court ruling, Justice Clarence Thomas broke from his eight other colleagues to say that appointing Jack Smith might be a violation of the appointments clause of Article II. However, Thomas was alone in that position, and this ruling would almost certainly be overturned by the Supreme Court if it gets there expeditiously (it won't).
4. It's worth noting that even Thomas did not go as far as Cannon did. He raised "essential questions" about special counsels, but we don’t know whether he'd agree with Cannon's answers to those questions.
5. The real-world implication of this ruling is nonsensical. Under Cannon’s opinion, Attorney General Merrick Garland — who was directly appointed by Trump's political rival — would end up investigating Trump. Or, if Biden were accused of wrongdoing, it’d be his own attorney general (rather than a special counsel) investigating his actions. The entire point of special counsels is to prosecute executive branch wrongdoing while insulating the executive branch appointees in the DOJ from the politics of doing so.

Because my opinion was biased against Cannon's handling of the case going into this news breaking, I've spent most of the last few days stress testing my view by reading arguments from the right defending her decision. Dan McLaughlin's piece, under "What the right is saying," is the best argument I've found. A key part of McLaughlin's argument is that Smith, unlike some other special counsels, was a private citizen — not an "officer of the United States" like David Weiss, the special counsel for Hunter Biden, who was already serving as a U.S. attorney.

Thus, according to McLaughlin, the only way for Smith to be legally appointed is if a law creates his position. McLaughlin argues no such law exists, and that Smith’s role was created by the attorney general’s regulations. But McLaughlin concedes a critical point in a single sentence toward the end of his argument: "There are a number of statutes that authorize varying kinds of hiring by the attorney general of people to assist the Justice Department in criminal cases. Cannon found none of them persuasive."

Which, really, is the whole ballgame: The statutes exist, but Cannon "found none of them persuasive." And again, this is not a new question. Neal K. Katyal, the person who helped draft the statutes cited to appoint Smith, characterizes Cannon’s claim as “palpably false.” Sarah Isgur and Michael Warren, two conservative analysts, wrote this in The Dispatch:

"The Supreme Court already looked into this question—way back in 1974. In United States v. Nixon, the court unanimously held that President Richard Nixon was required to comply with subpoenas from special prosecutor Leon Jaworski... Judge Cannon held that this language was not actually part of the court’s holding—nobody had challenged the constitutionality of Jaworski’s appointment and there had been no briefings on that question—and therefore this language was not binding precedent."

In other words, the Supreme Court already determined the legal authority of special counsels. But because they affirmed that in a case that wasn’t challenging the constitutionality of appointing a special counsel, Cannon decided she could ignore it. Her ruling is likely to get overturned — probably by the 11th Circuit, which has already overturned her twice. In a normal timeline that could be the kind of thing that forces Cannon off the case (and still may).

Yet, politically, none of that matters. Due in large part to how Cannon handled procedural issues, including one that was overturned, the odds this case was going to be heard (let alone finished) before the election were practically zero, and now they are zero.

That’s a genuine shame. I've criticized several of the prosecutions against Donald Trump. I've also criticized Special Counsel Jack Smith's actions in this case. But there is no doubt the classified documents charges against Trump were the most straightforward of all the charges against him, the ones he was most likely guilty of, and the ones I most preferred to see go to trial. As Jonathan Turley, a frequent Trump defender, put it:

"From the outset, I have maintained that the Florida case was the greatest threat to Trump. Where the other cases had serious constitutional, statutory and evidentiary flaws, the Florida case was based on well-established laws and precedent."

In the end, the merits of the case didn't matter, but the judge did. That's a shame — both for our justice system and for the American public, who certainly deserved a timely hearing on the questions at hand.

Disagree? That's okay. My opinion is just one of many. Write in and let us know why, and we'll consider publishing your feedback.

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Your feedback, answered.

Quite a few readers wrote in yesterday frustrated by my characterization of J.D. Vance as inexperienced. Nearly all the critical feedback from readers made two points: 1) Would I have said the same about former President Barack Obama? 2) What about Vice President Kamala Harris’s experience? 

My response: 1) Yes, I think I would have made similar arguments about Obama when he ran for president in 2008. If Tangle existed then, we would have shared the very mainstream concerns about his inexperience. Even so, Obama served for seven years as a state senator and four years as a U.S. Senator (twice as long as Vance) before running for president. Some people value Vance’s experience in the Marine Corps over Obama’s experience as a constitutional law professor, which is totally fair, but even Obama’s scant experience governing and legislating when he ran for president dwarfs what Vance has right now.

2) It's a pretty similar answer for Harris. She also had four years as a Senator under her belt when Biden chose her as his running mate, along with six years serving as attorney general of the most populous state in the country. Those are two executive-style, big-league roles. It would be tough to argue that Vance has comparable experience right now.

3) Finally, a lot of people accused me of some kind of bias for writing critically about Vance. Funnily enough, I was actually concerned I was softer on him than most of the politicians we analyze! Some even snarkily asked if I've ever uttered a critical word about Harris. In fact, yes, in 2022 we published an entire 3,500-word piece titled "What is Kamala Harris doing?". It was not a very friendly portrait.

Anyway, one of the most common responses I get from readers accusing me or us of bias is well, did you ever write about that? And even though that’s not a good argument, more often than not the answer is yes. If you are ever curious, here’s a reminder that you can find our archive of over 1,500 posts here.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to our inbox) or fill out this form.

Under the radar.

Robert F. Kennedy Jr. confirmed the authenticity of a leaked video of him having a phone conversation with former President Donald Trump and apologized to Trump for the video's release. In it, Trump and Kennedy can be heard discussing vaccines, President Biden's call to Trump after the assassination attempt, and Trump's insistence that he is going to win the 2024 election (which Kennedy appears to agree with). Kennedy's son, Bobby Kennedy III, posted the video before deleting it a couple of hours later, and wrote on X that "[Trump] could have picked a unity ticket instead he picked JD 'fire all the unvaccinated nurses' Vance." CBS News has the story.

Numbers.

• 404. The number of days since Jack Smith announced the indictment of former President Donald Trump in the classified documents case. 
• 47%. The percentage of U.S. adults who think Trump should be convicted of a crime in the classified documents case against him, according to a July 2024 YouGov poll. 
• 36%. The percentage of U.S. adults who think Trump should not be convicted in the case.
• 340. The approximate number of documents with classification markings found by authorities at Trump’s Mar-a-Lago estate.
• 38%. The percentage of U.S. adults who think the federal government can be impartial in investigations and prosecutions of political opponents of the president.
• 37%. The percentage of U.S. adults who think the federal government cannot be impartial in investigations and prosecutions of political opponents of the president.
• 36%. The percentage of U.S. adults who think a judge can be impartial in presiding over a case against the person who appointed them.
• 36%. The percentage of U.S. adults who think a judge cannot be impartial in presiding over a case against the person who appointed them.

The extras.

• One year ago today we wrote about Tommy Tuberville's abortion protest.
• The most clicked link in yesterday’s newsletter was Ingrid Andress’s attempt at the national anthem.
• Nothing to do with politics: Ingrid Andress’s mea culpa for her performance.
• Yesterday’s survey: 1,517 readers answered our survey question about Trump picking J.D. Vance with 28% strongly opposing the choice. “I don’t know what to make of him. Lack of experience and flip flopping is concerning,” one respondent said.

Have a nice day.

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