A federal judge in Florida has dismissed a criminal case against former President Donald Trump over his handling of classified documents, ruling that the appointment of special counsel Jack Smith in the case was unlawful.
Smith was appointed by Attorney General Merrick Garland and is taking on a role that will be more independent from Justice Department oversight, including the special counsel’s assistance in the recent prosecution of President Joe Biden’s son, Hunter Biden, who was convicted of lying about drug use when buying a gun.
U.S. District Judge Eileen Cannon, who was nominated to the federal bench by President Trump, agreed with the former president’s argument that Smith’s appointment in the case violated a constitutional provision that says “officials of the United States” must be appointed by the president and confirmed by the Senate.
As with previous special counsels, Garland appointed Smith without seeking Senate confirmation.
“If the political branch wants to empower the Attorney General to appoint Special Counsel Smith to investigate and prosecute this conduct with the full authority of a United States Attorney, there is an effective means to do so,” Cannon wrote.
Trump calls sentencing after assassination attempt a ‘first step’
Shortly after the ruling, Trump posted on Truth Social that the dismissal of the case “should just be the first step” toward moving forward following Saturday’s assassination attempt at a political rally.
Trump added that dismissal of the other cases against him should come next.
“Let’s come together to end the weaponization of our justice system and Make America Great Again!” he posted.
Trump was charged with mishandling classified documents, including knowingly retaining national defense information after leaving office, which allegedly contained information about U.S. and foreign military forces.
The Justice Department is expected to appeal.
The Justice Department did not immediately respond to a request for comment but is expected to appeal. If the ruling is adopted in other cases, it could jeopardize several Justice Department prosecutions, including President Trump’s federal election interference case and the upcoming trial of Hunter Biden on tax evasion charges.
Both Democratic and Republican administrations have appointed special counsels and independent counsel (the precursor to special counsel) to provide more independent oversight of investigations to avoid the appearance of a conflict of interest in politically sensitive investigations. These appointments have been consistently upheld in the courts.
Are you asking for Cannon to be removed from the case?
Some legal experts have suggested that Smith may not only appeal the sentence, but also ask that Cannon be removed from future cases.
Cannon has issued a series of rulings that outside observers have said violated the law in favor of Trump, including a temporary ban on investigators from reviewing seized documents, which was overturned in a sharp ruling by three Republican-appointed appeals court judges.
“This decision (which is completely wrong) can (and will) be immediately appealed to the Eleventh Circuit,” Georgetown University law professor Stephen Vladeck wrote on X (formerly Twitter), referring to the circuit court above Judge Cannon.
“The only question to me is whether the special counsel will ask that the case be reassigned to another judge,” Vladeck said.
“The dismissal of the Trump Papers lawsuit may actually be good news for Jack Smith, as he can now immediately appeal to the 11th Circuit Court of Appeals and ask that the case be reassigned to a new judge,” former US Attorney Barbara McQuaid said in a statement on X.
But University of Minnesota law professor Ilan Wurman pushed back against some of the criticism, writing on X that there is no law that “clearly suggests” that Congress gave the attorney general the power to appoint Smith.
“Judge Cannon’s ruling is not strange, it may actually be correct,” Wurman said.
An invitation from Justice Clarence Thomas?
Supreme Court Justice Clarence Thomas appears to have recently asked lower court judges to scrutinize Smith’s powers.
Justice Thomas, along with other Republican-appointed justices, ruled on July 1 that President Trump enjoys presidential immunity for actions that fall within the scope of his core constitutional powers, and that he enjoys immunity, at least presumptively, for all official acts. The ruling was made in a federal election interference lawsuit filed against President Trump, which Justice Smith was also prosecuting.
But Thomas also wrote a separate concurring opinion questioning Smith’s appointment.
“In this case, the Attorney General argues that he appointed a private citizen as a special counsel to prosecute a former president on behalf of the United States,” Thomas wrote, “but I am not sure that the position of special counsel is ‘created by law,’ as the Constitution requires.”
Judge Cannon cited Justice Thomas’ concurring opinion multiple times in Monday’s decision.
Cannon wrote that the special counsel is “taking over” powers.
Cannon wrote that a special counsel may be appointed and confirmed through a constitutional appointment process, or Congress may enact a law consistent with the constitution to authorize the appointment of a special counsel.
“The point is this: The Appointments Clause is an important constitutional constraint arising from the separation of powers and gives Congress a careful role in determining the appropriateness of granting appointment power to lower-level officials,” Cannon wrote.
“The special counsel position effectively takes away important legislative power and transfers it to agency heads, threatening in the process the structural freedoms inherent in the separation of powers.”
Judge Cannon also ruled that Congress did not approve funding for Smith, saying he did not need to consider what that, in and of itself, means for the case because he had already dismissed it based on the appointments issue.
