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It never made sense, and never seemed right: waving a magic wand giving a private citizen unlimited power to indict a former president of the United States.
In a landmark ruling released Monday, U.S. District Judge Eileen Cannon ruled that the appointment of Special Counsel Jack Smith was unconstitutional. As a result, she properly dismissed the Florida criminal charges against Donald Trump over his handling of classified documents.
Smith and the Department of Justice will likely appeal to a higher court immediately, but Cannon’s reasoned 93-page opinion establishes a clear record of sound legal judgment that will be difficult to overturn — and at some point, the U.S. Supreme Court may be forced to intervene.
Judge dismisses Trump’s Florida classified documents lawsuit
At the heart of the federal judge’s ruling is the Appointments Clause of the Constitution, which provides the sole means of selecting all “Officers of the United States”: They must be appointed by the President and confirmed by the Senate. Smith failed to meet both requirements.
Instead, he was appointed Special Counsel without due legal authority by Attorney General Merrick Garland on November 18, 2022. His unilateral action usurped Congress’s legislative power that energizes and preserves the separation of powers that we all respect.
Cannon concluded that “the Framers of the Constitution gave Congress a significant role in the appointment of principal and subordinate officers; that role cannot be usurped or dispersed elsewhere by the Executive, in this or any other case, whether in times of national need or not.” (Opinion, p. 91)
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In two important cases, the US Supreme Court emphasized that the Appointments Clause “is not merely a matter of ‘etiquette and custom,’ but one of the important structural guarantees of our constitutional system” (Edmond v. United States, 520 US 651; Buckley v. Valeo, 424 US 1).
In appointing Smith to his all-powerful position, Garland relied primarily on internal rules the Justice Department had devised to deliberately circumvent Congress. He argued that tradition and “historic practice” justified his tactics.
But that was a clever distortion of a contradictory history. While it is true that other special counsels — Patrick Fitzgerald, Robert Mueller, John Durham, David Weiss and Robert Hur — acted without the express consent of Congress, they all held U.S. office, having been appointed by the president and confirmed by the Senate. Smith never did that.
In their belated opposition to Trump’s motion to dismiss the case, Garland and Smith cited several statutes that supposedly justified their appointment, but Judge Cannon methodically dismantled them as completely inapplicable to a special counsel who is given largely unconstrained power to do as he pleases.
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Cannon’s concern was that Garland’s selection of Smith “gave him broad authority to make final decisions on behalf of the United States with little oversight or direction to the Special Counsel” (Opinion, p. 72).
How can the Attorney General give a private citizen the vast and unlimited powers of a U.S. Attorney when Mr. Smith is not and has never been an actual U.S. Attorney? His role is not to assist the approved U.S. Attorney, but to completely replace him.
By circumventing constitutional restrictions, Garland singlehandedly deprived Congress of the crucial role of Senate confirmation. Judge Eileen Cannon corrected this error by relying on the persuasive arguments of two former Attorneys General, Edwin Meese and Michael Mukasey, who filed amicus briefs that are emblazoned throughout the decision.
Cannon also raised concerns about the $12 million already spent by Smith and where those funds came from. Because that money was not provided by Congress, Garland and the special counsel have violated the Appropriations Clause of the Constitution, in much the same way that Garland’s appointment was an unlawful abuse of the Appointments Clause.
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If the decision to dismiss the charges against President Trump is appealed to the U.S. Supreme Court, it will face at least one justice who has already questioned the legitimacy of the special counsel: Justice Clarence Thomas, who expressed serious concerns in the recent presidential immunity case and whom Justice Cannon cited in his lengthy opinion.
In any case, the ruling makes it virtually impossible for Smith’s Florida documents case to go to trial before the November presidential election, or even before Inauguration Day if Trump wins the election.
Federal Judge Eileen Cannon (United States Court) (US Courts)
The judge did not comment on the contents of the indictment, but it did reveal some troubling aspects of the prosecutorial overreach, piling up what appeared to be 10 increasingly weak charges.
Cannon’s ruling is not binding on the federal judges presiding over a separate lawsuit filed by Smith against Trump in Washington, D.C., over alleged election interference. But that prosecution is already stalled by two recent Supreme Court decisions on immunity issues and the improper use of obstruction laws.
Still, Justice Thomas’ finding that Smith acted without authority could breathe new life into Trump’s long-running defense of the Jan. 6 attacks against him.
The weakening of Jack Smith’s wrongful prosecution marks a significant course correction in the increasingly heavy-handed tactics employed by President Joe Biden’s Justice Department and his compliant attorneys general. These cases, and those brought by district attorneys in New York and Georgia, have always been politically motivated, legally inadequate prosecutions designed to delegitimize Trump’s electoral chances.
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They had a spectacular boomerang effect.
This brings to mind what the English philosopher and jurist Jeremy Bentham once said: “The law is never wrong in itself; it is always the wicked interpreters of the law who corrupt and abuse it.”
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