In 1974, the Supreme Court apparently approved special jurisdiction for the prosecutor in the case of then-President Richard Nixon‘s case over the Watergate tapes subpoena. But by the case of the secret documents against Donald Trump on Monday, U.S. District Judge Aileen Kanon rejected the language of that Supreme Court ruling to conclude that Jack Smit was unlawfully appointed special prosecutor against the former president.
How could she do that?
Leaving aside for a moment the possibility that her ruling could be overturned on appeal, the answer lies in something called dictationwhat does language in an opinion mean that is not necessary to the ruling. Cannon considered the language in question from the Nixon case to be a kind of statement that is not a binding precedent.
Here is the relevant passage from the 1974 case United States v. Nixon, which she cited in her ruling dismissing the charges against Trump:
Cannon emphasized that “the central point of the parties’ dispute” regarding Smith’s appointment is the sentence: “It also gave him the power to appoint subordinate officers to assist him in carrying out his duties. 28 U.S.C. §§ 509, 510, 515, 533.” She noted that the defense argued that Nixon’s language on the attorney general’s authority “is a nonbinding dictum and thus should not govern the Court’s legal analysis,” while Smith said it was necessary to the case’s disposition and therefore binding on lower courts.
Cannon rejected Smith’s approach, writing that the attorney general’s authority in the Nixon case “was not raised, briefed, argued, or challenged before the Nixon Court” and that the Supreme Court at most assumed the attorney general had authority without expressly ruling on it. Therefore, the Trump appointee wrote, “Nixon’s passing remarks on that point are not binding precedent.”
Cannon went on to say that she disagrees with rulings by the federal appeals court in D.C. that Nixon cited approvingly, including a 2019 ruling against an objection to the appointment of special counsel Robert Mueller. Cannon sits on a different federal circuit (the 11th, which overturned her ruling in previous Trump-related cases), so she is not bound by the D.C. Circuit’s precedent.
Notably, Cannon cited Justice Clarence Thomas’ concurrence in the immunity ruling in Trump’s favor earlier this month, in which Thomas said the Nixon case made only “passing reference to the statutes cited” and provided “no analysis of the text of those provisions.” No other justices joined Thomas’ concurrence, but the issue of appointment was not directly before the justices in the immunity case, so we do not know how they would rule if the issue were argued before them. Thomas had joined Chief Justice John Roberts’ opinion granting broad criminal immunity, but wrote separately to raise the issue of appointment.
Ultimately, the Supreme Court may have to decide what its own precedent means. If the confirmation issue does end up before the Supreme Court, the question of course will be not just what a majority of the court thinks Nixon meant, but, perhaps more importantly, what a majority of the court intends to do in Trump’s case today. The immunity decision is a reminder that, particularly in cases involving presidential power, we can never know for sure what the court will do until it rules.
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This article was originally published on MSNBC.com
