“The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution,” the order reads.
The 93-page opinion and order was issued after days of oral arguments over the special counsel’s appointment and the statutory authority that the Justice Department argued Attorney General Merrick Garland used to appoint Mr. Smith.
The dismissal of the indictment also dismisses the cases of co-defendants Walt Nauta and Carlos De Oliveira. All scheduled hearings and deadlines have been canceled. Restrictions on sealed and classified information in the case remain in place.
A spokesman for Smith, Peter Carr, said the Justice Department had authorized an appeal.
Appointments Clause
The appointments clause stipulates that officers must be nominated by the president and confirmed by the Senate. It identifies a difference between what courts later deemed “principal” and “inferior” officers and states that department heads may appoint inferior officers if Congress has passed legislation allowing them to do so.
“[This is a] critical constitutional restriction stemming from the separation of powers,” the judge wrote. “[Mr. Smith’s appointment] effectively usurps that important legislative authority.”
The defense had argued that Mr. Smith had the powers of a principal officer and had not gone through the proper appointment process.
Prosecutors argued that Mr. Smith was an inferior officer and that the attorney general had the statutory authority to appoint a special counsel, relying on several different statutes naming independent counsel, special attorneys, and other similar positions but not a “special counsel statute,” as the judge noted in a hearing.
Judge Cannon accepted the prosecutors’ view that the special counsel is an “inferior officer” but found that there was no statutory authority allowing the head of the Justice Department to appoint such inferior officers.
“Is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no,” the judge wrote.
The judge found that Congress has passed laws allowing the president to nominate an attorney general, deputy attorney general, associate attorney general, solicitor general, and assistant attorney general and that each time, it used language in line with the appointments clause.
U.S. attorneys also go through the nomination and confirmation process, and some third-party amicus experts had argued that if the attorney general had selected a confirmed U.S. attorney for the position of special counsel, defendants could not have brought such a motion.
Prosecutors had pointed to statutes concerning the attorney general; FBI; U.S. attorneys; U.S. marshals; trustees; the Bureau of Alcohol, Tobacco, Firearms, and Explosives; and some concerning the expired Independent Counsel office.
Historic Practice
The judge found that the prosecutors’ arguments relied on “inconsistent history.”Prosecutors had argued that the attorney general has historically held the authority to appoint special counsel, and the judge found that the historical examples presented by the special counsel were not comparable. Some of the historic special counsels had been appointed with a confirmation, and some had not; some were appointed by a president, and some were not. Protocols for firing special counsel also varied.
But the practice of appointing “private citizens like Mr. Smith—as opposed to already-retained federal employees—appears much closer to the exception than the rule,” the judge found, as it has only been used in recent years, such as in the case of special counsel Robert Mueller.
Judge Cannon wrote that many of these historic examples involved attorneys who did not have as much power as Mr. Smith’s office.
The judge found the lack of special counsel legislation to be the most important factor.
“Congress—historically, and in the present moment—has shown that it knows how to create offices for special counsels. In 1924, Congress did so in response to the Teapot Dome scandal,” her opinion reads. “In 1978, Congress passed the much-discussed (and now-defunct) Independent Counsel Act.”
Finding that independent counsel—the closest comparison to the special counsel office—had too much independence, Congress let the law expire in 1999.
The parties had also argued over whether the special counsel’s office was properly funded, and the judge found that no ruling on the matter was necessary in light of her decision to dismiss the case.
Jan. 6 Case
This dismissal will not affect the other case that Mr. Smith is prosecuting against former President Trump, in the District of Columbia.The circuit court decision would allow Mr. Smith to continue wielding prosecutorial authority in that jurisdiction, unless the Florida case dismissal is appealed to the Supreme Court and the high court rules otherwise.
