Judge Tosses Trump Classified Docs Case, Rules Special Counsel Unconstitutional

The federal judge Aileen Cannon on Monday dismissed Special Counsel Jack Smith’s prosecution of former President Donald Trump (R) over his retention of classified documents, finding that Smith’s appointment as a special counsel was unconstitutional. “This is a seismic decision,” responded constitutional law expert Jonathan Turley. “You couldn’t have more favorable news for Donald Trump because … the Florida case was by far the greatest threat to Donald Trump.”

“Special Counsel’s Smith’s prosecution of this action 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,” Cannon wrote. “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.”

The constitutional language at issue is found in Article II, Section 2, otherwise known as the Appointments Clause:

“The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

This clause provides two ways of filling federal offices. For high-ranking posts, the president can only fill the positions with the “advice and consent of the Senate.” This category applies to ambassadors, cabinet ministers, Supreme Court justices, and any other positions “established by law” — that is, established by Congress. Because of the visibility of these positions, the “advice and consent” language in the clause is usually the part that receives the most attention.

Additionally, to prevent the Senate from becoming overburdened with approving appointments, this section provides a path for “inferior officers” to be chosen by “the president alone,” or courts, or even department heads (further delegating the workload). Even here, however, Congress plays a role in the appointment of these inferior officers, in that they must “vest the appointment” of these officers in the president’s hands “by law.”

This means that the president or any executive agency cannot simply invent a new office to fill with whomever they choose. Congress must create that office by statute and delegate the authority to fill that office by statute. For ambitious executives who find it annoying to be constrained by “rules” and such like, this arrangement is undesirable because, whenever Congress creates a new executive office, Congress usually defines that office with statutory parameters, which constrain what its occupant can and cannot do.

Where this law creates a problem for Jack Smith is that there is no law creating or authorizing the office of special counsel. There used to be a law, the Independent Counsel Act, but it expired in 1999. Judge Cannon cited a 1998 article, by none other than Brett Kavanaugh, arguing that a special counsel position could only be created if there were a new statute. Janet Reno, attorney general for the Clinton administration, replaced the Independent Counsel Act with Justice Department regulations. But that is not sufficient where the Constitution requires a law passed by Congress to authorize an official appointment.

The reason why other special counsel appointments have not faced serious constitutional challenges, Cannon reasoned, is because many special counsels were already officers of the United States at the time of their appointment. For instance, David Weiss, the special counsel for Hunter Biden, is still the U.S. attorney for the District of Delaware, a position he has held, with the consent of the Senate, since 2018 (why he failed to charge Hunter Biden in the intervening six years is another question). Smith, however, was not an officer of the United States when he was appointed special counsel.

Congress has been “complaining and even investigating … Jack Smith’s abuses of that special counsel office,” said House Speaker Mike Johnson (R-La.) on “Washington Watch.” “It’s supposed to be sort of governed and overseen by Congress. But we’ve had a limited ability to do so because of the way they’ve handled it.”

Cannon added briefly that, if Smith’s appointment as special counsel was unconstitutional because his position was not authorized by statute, his funding was also unconstitutional because Congress had not allocated money to support the office they had not created. “Here you have the judicial branch stepping in and saying, ‘Yeah, this wasn’t done the right way,’” Family Research Council President Tony Perkins summarized. “We have rules for a reason. We need to follow the rules.”

Because Judge Cannon dismissed the case entirely, the Biden administration would have to start the whole prosecution over again by convening a new grand jury. That time-consuming process would virtually guarantee that this case would not go to trial before the election in November, as the Biden administration had planned all along. Smith does have the opportunity to appeal the ruling to the 11th Circuit and will likely do so, but that option also consumes precious (for him) time.

Cannon’s ruling could also undermine another Trump prosecution, the case Smith brought in a Washington, D.C. court regarding the events of January 6. If Cannon correctly dismissed Smith’s case because his appointment as special counsel is unconstitutional, hypothesized National Review columnist Dan McLaughlin, “Smith’s indictment in D.C. is defective for the same reasons. If the case goes up to the Eleventh Circuit (as is likely) and her order is sustained, and the courts in D.C. disagree, the Supreme Court will have to get involved.” For every appeal and proceeding added to the schedule, Smith’s fourth-quarter push to convict Trump will see more time spiraling down the drain.

“This is a great relief to the system, of course to President Trump, and to the country itself,” Johnson reflected. The coordinated effort to time four separate criminal cases so that they would target Trump in an election year is “lawfare,” he insisted. “There’s no other way to describe it. They have actually weaponized the system of justice itself, which … is a great threat to our republic.” The word “threat” is inflammatory when affixed to a person operating within the parameters of our representative system of government; when describing actions that undermine that system, the word “threat” is accurate.

“It is one of the things, frankly, that has led to this outgrowth of aggression and anger among the people, that they don’t feel like they have … this fair legal system,” said Johnson. “We’ve got to restore and rebuild that trust. And I think clipping the wings of the special counsel is a big, important part of that.”