New Republic - Judge Aileen Cannon’s decision to toss out Donald Trump’s classified documents case by ruling special counsel Jack Smith’s appointment unconstitutional flies in the face of legal precedent, and the law itself, according to a former federal solicitor.Neal Katyal, who while serving as acting solicitor general helped draft the Department of Justice’s regulations for installing special counsels, challenged the Trump-appointed judge’s ruling in a New York Times op-ed Tuesday. He slammed Cannon’s claim that no congressional law authorized the special counsel’s appointment as “palpably false.”
Cannon’s decision “is legally unsupported, ignores decades of precedent and is deeply dangerous,” Katyal said, describing her actions as “highly erratic.” Katyal argued that the regulations on special counsel appointments were drafted under specific congressional laws. In particular, Katyal referred to U.S. Code 28 Section 515, which grants the attorney general, in this case Merrick Garland, 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].”
The same law also states that those attorneys can then “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct,” and Section 533 permits the attorney general to commission 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,” wrote Katyal.
Katyal wrote that when he proposed new regulations on appointing special counsels to Capitol Hill in 1999, not a single lawmaker challenged the legality of the new rules. Regulation 28 CFR 600 would come to replace the expired Independent Counsel Act with the Office of Special Counsel.
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