It never made sense or seemed right. With the wave of a wand, a private citizen was granted unlimited power to prosecute a former president of the United States.
In a tectonic opinion issued Monday, U.S. District Judge Aileen Cannon ruled that the appointment of special counsel Jack Smith was unconstitutional. As a consequence, she correctly dismissed the Florida criminal indictment of Donald Trump over his handling of classified documents.
Smith and the Department of Justice (DOJ) will likely file an immediate appeal to a higher court. But Cannon’s well-reasoned 93-page opinion establishes a clarifying record of sound legal judgment that will be difficult to overcome. At some point, the U.S. Supreme Court may be forced to intervene.
JUDGE DISMISSES TRUMP’S FLORIDA CLASSIFIED DOCUMENTS CASE
At the heart of the federal judge’s decision is the Appointments Clause of the Constitution which provides the exclusive means for selecting all “Officers of the United States.” They must be appointed by the president and confirmed by the senate. Smith failed both requirements.
Instead, he was anointed special counsel by Attorney General Merrick Garland on November 18, 2022, without legitimate statutory authority. His unilateral act commandeered the legislative right of Congress that animates and preserves our revered separation of powers.
Cannon concluded, “The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere —whether in this case or in another case, whether in times of heightened national need or not.” (Opinion, page 91)
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In two seminal cases, the U.S. Supreme Court emphasized that the Appointments Clause is “more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme.” (Edmond v. United States, 520 U.S. 651; Buckley vs. Valeo, 424 U.S. 1)
In naming Smith to his almighty position, Garland relied mainly on internal regulations devised by the DOJ that deliberately circumvented Congress. Tradition and “historical practice,” he argued, justified his maneuver.
However, that was a clever misrepresentation of inconsistent history. While it is true that other special counsels have operated without specific legislative consent —Patrick Fitzgerald, Robert Mueller, John Durham, David Weiss, and Robert Hur— all of them had been presidentially appointed and Senate approved in prior positions as officers of the United States. Smith never was.
Belatedly, and in opposition to Trump’s motion to dismiss the case against him, Garland and Smith cited a handful of statutes that purported to rationalize the appointment. But Judge Cannon methodically disassembled them as wholly inapplicable to a special counsel who was given nearly unfettered authority to do as he pleases.
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What concerned Cannon was how Garland’s selection of Smith “imposed almost no supervision or direction over the special counsel and gave him broad power to render final decisions on behalf of the United States.” (Opinion, page 72)
How is it possible that an attorney general could vest in a private citizen the immense and unchecked power of a U.S. Attorney when, in fact, Smith is not and never was? His role is not to assist an approved U.S. Attorney but replace one entirely.
By evading constitutional restrictions, Garland single-handedly stripped Congress of its vital role of Senate approval. Judge Aileen Cannon remedied this mistake. In doing so, she built on the compelling contentions of two former Attorneys General, Edwin Meese and Michael Mukasey, who filed an amicus (“friend of the court”) brief. Their persuasive arguments can be seen writ large throughout the opinion.
Cannon also expressed alarm at the $12 million already spent by Smith and where exactly the money came from. The expenses were not doled out by Congress, which means that both Garland and the special counsel violated the Appropriations Clause of the Constitution in much the same way that his assignation was unlawful abuse of the Appointments Clause.
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If the decision dismissing the prosecution of Trump ever reaches the nation’s highest court, it will meet at least one justice who had already questioned the legitimacy of the special counsel. Justice Clarence Thomas expressed serious misgivings during the recent presidential immunity case. Indeed, Cannon cited it in her lengthy opinion.
Regardless, the current ruling makes it effectively impossible for Smith’s Florida classified documents case from reaching trial before the presidential election in November or even the inauguration should Trump prevail at the ballot box.
The judge did not address the merits of the indictment, which had troubling aspects of prosecutorial overreach in the stacking of charges that seemed weaker by the dozen.
Cannon’s ruling is not binding on the federal judge in Smith’s other case against Trump in Washington, D.C. over alleged election-interference. But that prosecution is already stalled by the two recent Supreme Court decisions over the immunity issue and the improper use of an obstruction statute.
Nevertheless, Justice Thomas’ observation that Smith is acting without authority may breathe new life into Trump’s long-term defense in the January 6th case against him.
The erosion of Jack Smith’s misbegotten prosecutions represents an important course correction in the increasingly abusive tactics employed by President Joe Biden’s Justice Department and his sycophantic attorney general. These cases, as well as those brought by local district attorneys in New York and Georgia, were always politically driven and legally anemic persecutions designed to delegitimize Trump’s electoral chances.
They have boomeranged spectacularly.
It is a reminder of what the English philosopher and jurist, Jeremy Bentham, once said, “It is never the law itself that is in the wrong; it is always some wicked interpreter of the law that has corrupted and abused it.”
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