By Sam Dorman
Contributing Writer
U.S. District Judge Aileen Cannon dismissed the Justice Department’s classified documents case against former President Donald Trump on Monday, ruling that special counsel Jack Smith’s appointment violated two key provisions of the U.S. Constitution.
In a 93-page ruling, Cannon wrote that Smith’s prosecution of the former president “breaches two structural cornerstones of our constitutional scheme — the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law.”
The ruling raises questions about the Justice Department’s use of special counsels.
Peter Carr, a spokesman for 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,” Carr said in a prepared statement.
Here are some key takeaways on the ruling and its implications.
Special Counsels and the Appointments Clause
Cannon ruled that 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 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 Smith pointed to other laws to justify his appointment, Cannon rejected those arguments.
Cannon’s ruling conflicts with a 2019 judgment by the U.S. Court of Appeals for the District of Columbia Circuit, which upheld former special counsel Robert Mueller’s appointment.
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.”
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.
The ruling is limited to the prosecution of Trump in the Southern District of Florida but could be cited in other cases.
Appeal to 11th Circuit
Smith is expected to appeal 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 Cannon’s ruling.
“I wouldn’t be surprised if her order is overturned by the 11th Circuit or the Supreme Court,” Neama Rahmani, a former federal prosecutor, said in an emailed statement. “Justice [Clarence] Thomas is the only justice who seems persuaded by this type of argument.”
Rahmani was referring to Supreme Court Justice Clarence Thomas’s concurrence in Trump v. United States, which held that the former president enjoyed some immunity from criminal prosecution. That concurrence focused on the legality of special counsels and was quoted by Cannon in her Monday decision.
By contrast, John Shu, a constitutional law expert who served in both Bush administrations, said that Cannon’s opinion was “well-reasoned and well-written.”
If the 11th Circuit rejects Cannon’s ruling, it will presumably send the case back to the district court level to continue pretrial proceedings.
Replacement Prosecutor?
While 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.
Shu said appointing Lapointe would be problematic from a public relations perspective for the Justice Department, given that Garland had justified his appointment of Smith on the grounds of maintaining “both independence and accountability in particularly sensitive matters.”
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.
Shu, who is also a former clerk for the 11th Circuit, said that “if Smith appeals, there’s no way the 11th Circuit can hear this case before the election; it’s not logistically possible.”
Supreme Court Appeal
Smith could also request that the Supreme Court skip the appellate level and take on 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 Trump’s immunity appeal in his federal election case.
In the event that the 11th Circuit overturns Cannon’s ruling, it is likely that 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 Trump in the 2024 election cycle.
Cannon’s decision added to a year of major court rulings on the nation’s separation of powers.
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 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,” Thomas wrote in the majority 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.
“What I’m worried about here is that that was kind of, ‘let’s relax Article II a bit for the needs of the moment,’” he said during oral argument in the presidential immunity case on April 25. “And I’m worried about a similar kind of situation applying here.”
Article II, which refers to the section of the Constitution establishing the president’s authority, contains the appointments clause.
Impact on Federal Election Case
Trump may also bring a motion to dismiss the federal election case in Washington based on the Florida ruling.
Rahmani predicts that 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,” Rahmani said.
He noted that Chutkan has already ruled unfavorably for 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 Mueller’s appointment would allow Chutkan to reject challenges to Smith’s appointment in her court.
Cannon dismissed Smith’s attempts to use opinions from outside of the 11th Circuit.
She stated in her Monday opinion that they didn’t consider statutory authority “in a meaningful way,” adding that “the court does not find them persuasive here.”
Cannon limited her ruling on Monday 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, Rahmani said.
Both the president and his son have been investigated by special counsels during Biden’s term in office. 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 Cannon’s ruling, it’s unclear what would happen to Weiss’ investigation.
