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Guest Essay

By Neal K. Katyal

Mr. Katyal is a professor at Georgetown University Law Center.

Judge Aileen Cannon’s decision to throw out serious national-security criminal charges in the classified documents case against Donald Trump is legally unsupported, ignores decades of precedent and is deeply dangerous.

At a time when Americans need to trust their institutions, her decision to declare that the appointment of the special counsel overseeing the case, Jack Smith, “violates the Appointments Clause of the United States Constitution” will undermine that trust and the legitimacy of high-level investigations in the eyes of many Americans.

Her decision is quite unlikely to survive the tests of time, or even the appeal Mr. Smith’s office said he intends to make. But it will further delay a case that has moved so slowly under her direction that it was already virtually certain it would never go to a jury before Election Day.

Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.

Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant[s] to the attorney general or special attorney[s].” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.”

Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.” These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law.

I drafted the special counsel regulations for the Justice Department to replace the Independent Counsel Act in 1999 when I worked at the department. Janet Reno, the attorney general at the time, and I then went to Capitol........

© The New York Times