The Uncertain Future of Special Counsels

Taken together, the Supreme Court’s immunity decision and Judge Cannon’s dismissal of the Mar-a-Lago case may have made independent prosecutors obsolete.

(Composite / Photos: Shutterstock / Public Domain)

WHEN U.S. DISTRICT JUDGE AILEEN CANNON dismissed the classified-documents case against Donald Trump, she didn’t only give a boost to the Republican presidential candidate. If her decision is not overturned, Cannon—along with the U.S. Supreme Court, via its recent ruling on presidential immunity—may have destroyed the foundations of independence for federal prosecutors, rendering the concept of a special counsel all but obsolete.

In her stunning ruling last week, Cannon threw out altogether the criminal case against Trump for taking classified documents from the White House, stowing them at Mar-a-Lago, and then stonewalling the FBI for months when the U.S. government asked him to return the materials to their proper owner, the American people. To this day, we do not know how much damage was done to national security during Trump’s private possession of these materials, which included nuclear information and war plans, or whether any of the forty-eight empty file folders found at Mar-a-Lago that were marked “classified” fell into enemy hands. Cannon tossed the case out on the thin rationale that Special Counsel Jack Smith was acting extraconstitutionally.

Smith has since appealed the ruling, as he should. But while numerous commentators have argued that an appeal is vital because Cannon’s decision “casts a cloud” on the legitimacy of the underlying law authorizing the appointment of a special counsel, their argument misses the forest for the trees.

Thanks to the Supreme Court, there’s no need for special counsels anymore.

The entire notion of a special counsel could become an arcane footnote of legal history. The Court turned the very purpose of appointing an independent prosecutor on its head.

The modern special counsel law arises from a Justice Department regulation—not a statute. But that wasn’t always the case. In 1978, following President Richard Nixon’s dismissal of Special Prosecutor Archibald Cox for refusing to drop a subpoena for Nixon’s Oval Office audiotapes, Congress created a position called independent counsel. That statute lapsed in 1999 and was replaced by the current Department of Justice regulations for the special counsel. These three terms—special prosecutor, independent counsel, and special counsel—are distinct, and each involved different ways of appointing and overseeing the person in that position. But the purpose was basically the same in each case: keeping presidents out of politically charged prosecutions.

As Chief Justice Rehnquist explained for the majority in Morrison v. Olson, which upheld the independent counsel law in 1988, “Congress of course was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers.” In other words, Congress didn’t want presidents to have the power to call off investigations into their own wrongdoing. At the same time, prosecutorial independence has largely made it harder for presidents to use the Department of Justice to bully political enemies.

Rejecting claims that an independent prosecutor interfered with a president’s constitutional prerogative, the Morrison majority “simply d[id] not see how the President’s need to control the exercise of that discretion is so central to the functioning of the Executive Branch” that he should have complete and unilateral control over federal prosecutions.

The Court’s decision in Trump v. U.S. last month upended the Morrison theory. The majority in Trump specifically held that discussions between presidents and attorneys general are completely immune from criminal scrutiny—even if they are part of the commission of a federal crime. Presidents now have “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials”—in stark contrast to the principles underlying the decision in Morrison.

In essence, Cannon ruled that that special counsels appointed under a pre-Trump v. U.S. regime are unconstitutional. In a practical sense, she was probably “correct,” although for the wrong reasons. As a matter of law, Cannon’s decision undermined Morrison and United States v. Nixon, in which a unanimous Court in 1974 specifically rejected an argument that the special prosecutor lacked the legal authority to investigate Nixon. But after the Trump ruling, special counsels have no secure place under the Supreme Court’s revised vision of Article II of the Constitution. Cannon’s decision, inspired by an opinion Justice Clarence Thomas wrote concurring with the Trump decision, implicitly acknowledged this. The Supreme Court’s majority greenlighted the president’s use of prosecutors for vindictive prosecutions, or even to commit crimes, rendering special counsels a thing of the past.

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FOR NOW, CANNON’S RULING ONLY BINDS the Mar-a-Lago case. It has no bearing on any other trial in federal court in Florida, let alone in other parts of the United States. If Smith’s appeal is successful in the Eleventh Circuit, he runs the risk of prompting the Supreme Court majority to side with Cannon as a constitutional matter, killing special counsel appointments for good—unless and until some future Congress votes to reinstate something akin to the independent counsel statute.

But even if Congress were to go that far, the Supreme Court’s immunity ruling would arguably supersede it, because the Court purported to “find” criminal immunity for DOJ prosecutions under the silent implications of the Constitution itself. Presidents can now use DOJ as they please, even if that means pursuing a lawless personal quest for illicit power.

So what’s left of special counsels going forward? Perhaps a future president could decide for the sake of the public to invoke a special counsel despite the Supreme Court’s immunity decision, on the theory that the majority got the Constitution flat wrong. Such a president might still see the benefit of a politically neutral DOJ, both for the rule of law and the public’s perception of the integrity and legitimacy of the vast federal law enforcement machine. But that kind of restraint would take a special person in the presidency, one who aligns not with the Donald Trump model of pursuing office for the sake of enriching oneself and attacking one’s enemies but instead with the Joe Biden model of public service and personal honor.