A federal judge in Florida threw out the prosecution of former President Donald Trump on Monday in the “documents” case because she ruled that Special Counsel Jack Smith had not been appointed in a constitutional or lawful manner.
Judge Aileen Cannon granted a defense motion after ruling that Smith, who was not confirmed by the U.S. Senate and was not a U.S. Attorney when appointed, could not lawfully bring the indictment against Trump in federal court.
“In the end, it seems the Executive’s growing comfort in appointing ‘regulatory’ special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny,” Cannon wrote, according to a CNN report.
Update: In her opinion, Judge Cannon wrote:
In the end, it seems the Executive’s growing comfort in appointing “regulatory” special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny. Perhaps this can be traced back to reliance on stray dictum in Nixon that perpetuated in subsequent cases. Perhaps it can be justified practically by the urgency of national crises. Or perhaps it can be explained by the relative infrequency of these types of investigations, by congressional inattention, or by the important roles that special-counsel-like figures have played in our country’s history. Regardless of the explanation, the present Motion requires careful analysis of the statutory landscape to ensure compliance with the Constitution, and the Court has endeavored to do so with care.
The Court thus returns to where it started. The Appointments Clause is “among the significant structural safeguards of the constitutional scheme.” Edmond, 520 U.S. at 659. So too is the Appropriations Clause, which carefully separates Congressional control of the “purse” from Executive control of the “sword.” The Federalist No. 78 (Alexander Hamilton). The consequences of relaxing either of those critical provisions are serious, both in this case and beyond. As Justice Frankfurter explained in his opinion in Youngstown, “[t]he accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J., concurring). “[I]llegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886).
The stunning development came on the first morning of the Republican National Convention (RNC) in Milwaukee, Wisconsin, and will excite an already emotional gathering in the wake of Trump’s attempted assassination Saturday.
Many conservatives believe that the slew of prosecutions — two federal, two state — and civil actions against Trump were part of creating the climate of hatred that could have encouraged the assassination attempt in Pennsylvania.
Legal analysts believed that the “documents” case was probably the strongest one against Trump, since he did not enjoy the immunity of office at the time of the alleged conduct.
With that case gone, the legal campaign against Trump — “lawfare” — looks decidedly shaky. Trump was convicted in Manhattan of falsifying business records, but many observers regard the prosecution as unlawful and the judge as biased, suggesting an appeal is likely to succeed.
As Breitbart News noted in early June, Cannon scheduled a hearing on the constitutionality of Smith’s appointment, which had been raised by the defense as well as a number of outside amicus curiae (“friend of the court”) briefs.
Last month, U.S. Supreme Court Justice Clarence Thomas suggested in a concurring opinion in Fischer v. United States — which said the Department of Justice had abused its power in prosecuting January 6th defendants under a statute about witness tampering — that Smith’s appointment was likely unconstitutional. Smith’s took aim at Thomas’s arguments in an unrelated filing in the case last week, which raised some legal eyebrows.
Democrats and media pundits have bemoaned the fact that Judge Cannon even chose to hear arguments on the constitutionality of Smith’s appointment. They even organized mass campaigns to file ethics complaints against her.
They have accused Cannon of being biased in Trump’s favor because he appointed her. But more neutral observers have applauded her attention to detail and her refusal to rubber-stamp Smith’s prosecution and its unusual methods.
Smith was working as a prosecutor at the International Criminal Court at The Hague. He had been an Acting U.S. Attorney in Nashville, Tennessee — never confirmed by the Senate — and resigned in the first year of the Trump administration.
Smith brought charges against Trump in Florida — the site of Trump’s private residence at Mar-a-Lago — alleging that he had mishandled classified documents when he left office. Judge Cannon looked askance at the fact that Smith convened a grand jury in Washington, D.C. — a notoriously anti-Trump jurisdiction — rather than in Florida.
It is not clear if Cannon’s ruling affects Smith’s separate prosecution of Trump for January 6-related charges in Washington.
The “documents” case brings to an end one of the most extraordinary and controversial prosecutions in American history — one that began with an unprecedented armed raid on Trump’s private Mar-a-Lago home in August 2022.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of “”The Agenda: What Trump Should Do in His First 100 Days,” available for pre-order on Amazon. He is also the author of “The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency,” now available on Audible. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
Correction: This article has been corrected to reflect the fact that Jack Smith was only an Acting U.S. Attorney, never confirmed by the Senate as a U.S. Attorney.
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