Professor Gregory Germain spoke with Law 360 on U.S. District Judge Aileen Cannon’s dismissal of the classified documents case due to U.S. Attorney General Merrick Garland not having the authority under the appointments clause of the U.S. Constitution to appoint an independent prosecutor.
Germain noted that the recent Presidential immunity and Chevron decisions laid the groundwork for Judge Cannon’s decision.
“We’ve now had not only the immunity case but also the overruling of the Chevron doctrine,” Germain said. “This court is very concerned about separation of powers issues and about the executive branch usurping the power of Congress. That’s why I think they might say that there’s no statutory authority.”
Germain notes that it is possible to simply appoint an already confirmed U.S. attorney as a special prosecutor for the case.
“Dismissal is such an extraordinary remedy when the defendant really hasn’t been harmed by who is prosecuting the case,” Germain said. “I think the remedy is just clearly wrong.”