Judge Aileen Cannon on Monday threw out the lawfare prosecution against former President Donald Trump for allegedly mishandling classified documents after finding the Biden administration unconstitutionally appointed Special Counsel Jack Smith.
As part of the Biden Justice Department’s effort to jail the president’s political opponent, Attorney General Merrick Garland appointed Special Counsel Jack Smith to prosecute Trump. The appointment served as the pretext for the armed 2022 raid on Mar-a-Lago — where the use of deadly force was authorized — and led to Smith indicting Trump in June 2023 on 40 federal charges related to his alleged mishandling of classified documents.
Cannon postponed the trial indefinitely in May, and she heard arguments from Trump’s attorneys in June alleging Smith’s appointment was unconstitutional under the Appointments Clause.
Cannon agreed in an order on Monday.
“Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order,” Cannon ruled. “The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointment’s Clause of the United States Constitution.”
Trump’s team questioned whether, according to the Order, “there [is] 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,” Cannon ruled.
“None of the statutes cited as legal authority for the appointment … gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith,” the ruling states.
Cannon ruled Congress is granted via the Constitution a “role in determining the propriety of vesting appointment power for inferior officers.”
“The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,” Cannon ruled. “If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so.”
Cannon ruled Smith’s appointment also “violates the Appropriations Clause … but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding.”
Supreme Court Justice Clarence Thomas recently raised the same argument in a concurring opinion affirming presidents have “at least presumptive immunity” for official acts.
Thomas argued that Attorney General Merrick Garland’s appointment of Smith to prosecute Trump as part of the Biden administration’s lawfare efforts may have been unconstitutional because he is “not sure that any office for the Special Counsel has been ‘established by Law’ as the Constitution requires.”
“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President,” Thomas opined. “If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
Thomas also invoked the founder to explain why Garland’s ability to create and fill roles was purposely limited.
“To guard against tyranny, the Founders required that a federal office be ‘established by Law.'”
“As James Madison cautioned,” Thomas continued, “‘[I]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.”
