U.S. District Judge Aileen Cannon dismissed the Justice Department’s classified documents case against former President Donald Trump on July 15, ruling that special counsel Jack Smith’s appointment violated two key provisions of the U.S. Constitution.
The ruling raises questions about the Justice Department’s use of special counsels.
Peter Carr, a spokesman for Mr. Smith, said the Justice Department had authorized an appeal.
“The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a special counsel,” Mr. Carr said in a statement provided to The Epoch Times.
Special Counsels and the Appointments Clause
Judge Cannon ruled that Mr. Smith’s position was unconstitutional under the appointments clause of the Constitution, which states that Congress can, through law, allow department heads to appoint “inferior” officers.The judge ruled that Mr. Smith was an inferior officer, which requires Congress to authorize the attorney general to appoint him as special counsel, which didn’t happen.
Her ruling pointed to how Congress let the Independent Counsel Act, which allowed the Justice Department to appoint special prosecutors, expire in 1999. While Mr. Smith pointed to other laws to justify his appointment, Judge Cannon rejected those arguments.
The Florida judge also declared his funding illegitimate in her opinion.
“Special Counsel Smith’s office—since November 2022—has been drawing funds from the Treasury without statutory authorization, in violation of the Appropriations Clause,” she wrote.
The appropriations clause reads, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
Judge Cannon said the court “has difficulty seeing how a remedy short of dismissal would cure this substantial separation-of-powers violation, but the answers are not entirely self-evident, and the caselaw is not well developed,” she said.
Appeal to 11th Circuit
Mr. Smith is expected to appeal Judge Cannon’s decision to dismiss the case to the U.S. Court of Appeals for the 11th Circuit. The 11th Circuit will likely hear the case with a three-judge panel, which could either affirm or reject Judge Cannon’s ruling.
“I wouldn’t be surprised if her order is overturned by the Eleventh Circuit or the Supreme Court,” Neama Rahmani, a former federal prosecutor, told The Epoch Times in an email. “Justice [Clarence] Thomas is the only justice who seems persuaded by this type of argument.”
By contrast, John Shu, a constitutional law expert who served in both Bush administrations, told The Epoch Times that Judge Cannon’s opinion was “well-reasoned and well-written.”
If the 11th Circuit rejects Judge Cannon’s ruling, it will presumably send the case back to the district court level to continue pretrial proceedings.
Replacement Prosecutor?
While Mr. Smith pursues an appeal, Attorney General Merrick Garland could assign a U.S. attorney to bring charges against the former president in Florida. Doing so would require that attorney to once again obtain an indictment from a grand jury.The U.S. attorney for that district is Markenzy Lapointe.
With the appeals process afoot, even if the decision is overturned by a higher court, it is now extremely unlikely that a trial will occur before the November election.
Supreme Court Appeal
Mr. Smith could also request that the Supreme Court skip the appellate level and take on Judge Cannon’s dismissal in an expedited fashion. It seems unlikely, however, that the top court would grant that request, given that it refused to do the same for former President Trump’s immunity appeal in his federal election case.
In the event that the 11th Circuit overturns Judge Cannon’s ruling, it is likely that former President Trump will appeal to the Supreme Court.
If the high court takes up an appeal, it would mark the third time that it has taken up a major constitutional question surrounding former President Trump in the 2024 election cycle.
The 6–3 Supreme Court decision in the Trump v. United States presidential immunity case ordered reconsideration of the issue by U.S. District Judge Tanya Chutkan. That case involves former President Trump’s reaction to the 2020 election, as well as his actions leading up to and on Jan. 6, 2021.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Justice Thomas wrote in the concurring opinion, referring to the prosecution in Washington. “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
Earlier this year, Supreme Court Justice Brett Kavanaugh also raised concerns about special counsels while criticizing Morrison v. Olson, a 1988 Supreme Court opinion upholding the Independent Counsel Act.
Impact on Federal Election Case
Former President Trump may also bring a motion to dismiss the federal election case in Washington based on the Florida ruling.Mr. Rahmani predicts that Judge Chutkan will reject a motion to dismiss that’s based on the special counsel’s legality.
“There’s no way any other judge aside from [Judge] Cannon or maybe Clarence Thomas ... would entertain something like this,” Mr. Rahmani said.
He noted that Judge Chutkan has already ruled unfavorably for former President Trump, pointing to her decision on presidential immunity and the former president’s attempts to prevent the National Archives from giving his records to the House Jan. 6 Committee.
The U.S. Court of Appeals for the District of Columbia Circuit’s ruling on Mr. Mueller’s appointment would allow Judge Chutkan to reject challenges to Mr. Smith’s appointment in her court.
Judge Cannon dismissed Mr. Smith’s attempts to use opinions from outside of the 11th Circuit.
Judge Cannon limited her ruling on July 15 to the former president’s case, but it could serve as a vehicle for reconsidering the use of special counsels, most notably related to President Joe Biden’s son Hunter Biden, Mr. Rahmani said.
Both the president and his son have been investigated by special counsels during President Biden’s term in office. Mr. Garland appointed U.S. Attorney David Weiss in Delaware to serve as the special counsel investigating the president’s son.
If that investigation continues past a Supreme Court ruling upholding Judge Cannon’s ruling, it’s unclear what would happen to Mr. Weiss’s investigation.
