DOJ Appeals Judge’s Dismissal of Trump Documents Case

(Left) U.S. District Judge Aileen Cannon. (Right) Special counsel Jack Smith. U.S. Southern District of Florida; Saul Loeb/AFP via Getty Images

Prosecutor Jay Bratt on July 17 filed a notice of appeal of U.S. District Judge Aileen Cannon’s recent dismissal of the indictment against former President Donald Trump.

The judge ruled that special counsel Jack Smith was unlawfully appointed to his office, as the attorney general had no constitutional nor statutory authority to appoint an officer with the breadth of power given to Mr. Smith.

Judges in the 11th Circuit Court of Appeals will need to decide whether to accept the appeal.

Peter Carr, spokesperson for the special counsel, said the Justice Department had authorized an appeal when the judge issued the July 15 ruling.

“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.

2 Cases

The ruling that dismissed the indictment against the former president and two of his employees found that Mr. Smith had no authority to prosecute the case in the Southern District of Florida.

However, Mr. Smith continues to prosecute a second case against former President Trump in the District of Columbia, where in 2018 a district judge ruled that attorneys general had the authority to appoint inferior officers such as special counsel, and in 2019 the circuit court upheld the decision on appeal.

The District of Columbia indictment charges former President Trump with conspiracy and obstruction based on his actions on Jan. 6, 2021. The case was recently remanded to the district court after the Supreme Court ruled that former President Trump has presidential immunity for some actions in the indictment.

U.S. District Judge Tanya Chutkan will have to make sure all actions for which a president enjoys immunity are struck from the indictment before the case can move forward.

Appointments Clause

Judge Cannon dismissed the classified documents case based on the appointments clause of the U.S. Constitution, which states that officers must be nominated by the president and confirmed by the Senate and that Congress can pass laws to allow department heads to appoint specific officers of their own accord.

Congress has passed legislation concerning the appointments of the attorney general, deputy attorney general, associate attorney general, solicitor general, and assistant attorney general, and it intentionally let expire a law that allowed for the appointment of an “independent counsel” similar to the special counsel position Mr. Smith now occupies, she found.

Judge Cannon also found that appointing a private citizen as special counsel was the exception, not the norm, and had only been done in recent years. She said several other recent special counsels were U.S. attorneys who had gone through the nomination and confirmation process required by the appointments clause.

The case was dismissed days after former President Trump survived an assassination attempt at a rally. In a statement on social media, he welcomed the ruling and called for the rest of his cases to be dismissed.

“As we move forward in Uniting our Nation after the horrific events on Saturday, this dismissal of the Lawless Indictment in Florida should be just the first step, followed quickly by the dismissal of ALL the Witch Hunts,” he wrote.