The conservative legal movement has long prided itself on following the text of the Constitution and federal statutes. Originalism and textualism are both legal philosophies that prize the plain language of the words on the page. Any other approach has been derided as “living constitutionalism,” a philosophy that makes the law subject to the judge’s own preferences.
Yet we’re now seeing conservative judges issue rulings that seem to defy the text. Judge Aileen Cannon’s lengthy opinion dismissing special counsel Jack Smith’s classified documents case against Donald Trump is yet another example of this disturbing trend. Her ruling contradicts the clear language of the Constitution and the relevant statutes.
The basic legal framework of the case is simple to explain — the appointments clause of the Constitution vests in the president the power to appoint “officers of the United States,” but it also provides that Congress can vest the appointment of “inferior officers” in “heads of departments.” Trump’s team claims that Congress never vested the attorney general with the power to appoint Smith.
Federal law and Supreme Court precedent make that claim questionable. For example, federal law authorizes the attorney general to retain a “special assistant to the attorney general or special attorney” and also empowers the attorney general to “appoint officials” to “detect and prosecute crimes against the United States.” In United States v. Nixon, the Supreme Court cited those statutory provisions and declared that Congress had given the attorney general “the power to appoint subordinate officers to assist him in the discharge of his duties.”
Even though Cannon accepted Smith’s argument that he is an “inferior officer,” she still held that his appointment violated the appointments clause. The opinion is a long exercise in the use of structural and historical arguments to argue that the words in the Constitution, case law and the relevant statutes do not quite mean what they seem to so clearly say.
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Her ruling is mistaken, but it is not frivolous. There isn’t a specific special counsel statute within the federal code. In cases such as Trump v. Anderson (which blocked Colorado’s attempt to remove Trump from the ballot) and Trump v. United States (which granted him sweeping immunity from criminal prosecution for official acts), the Supreme Court used structural concerns about the balance of power between the states and federal government, or between Congress and the president, to issue rulings at odds with the actual constitutional text.
The Supreme Court and the lower courts should consider the constitutional structure of our government when rendering their rulings, but when both the Constitution and the relevant statutes speak clearly, the judge’s role is to apply the text, not to engage in linguistic and historical gymnastics to explain it away.
David French is a New York Times columnist.
