The judge presiding over the classified documents case against former President Donald Trump made waves Monday after she dismissed the indictment based on the “unconstitutional” appointment of special counsel Jack Smith, raising questions about the future of Smith’s two cases against Trump.
The decision by the Trump-appointed U.S. District Judge Aileen Cannon also leaves lingering inquiries about the proper means to appoint special counsels for federal criminal cases. Her decision isn’t final, and a spokesman from the special counsel’s office said Monday afternoon the Department of Justice has authorized the office to appeal the ruling to the U.S. Court of Appeals for the 11th Circuit.
Legal experts such as former federal prosecutor Neama Rahmani described Cannon’s ruling as “stunning” in a statement to the Washington Examiner, saying Cannon “could have easily dismissed the case on grounds of presidential immunity instead of saying Smith’s appointment was unconstitutional.”
Cannon’s decision comes just two weeks after the Supreme Court decided the immunity dispute in Trump v. United States, which separated presidential acts into three buckets: clear immunity from prosecution, clearly not immune, and unclear. However, she only leaned partially on that ruling in her written decision, citing a portion of a concurrence by Justice Clarence Thomas.
Here are the top questions swirling after the shocking classified documents case dismissal.
How did Cannon come to her determination?
The dismissal of the 40-count indictment in Florida clung to the fact that no statute authorized the appointment of Smith and his deputies, and it rested on violations of the Constitution’s Appointments and Appropriations clauses.
“The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers,” Cannon wrote in a 93-page ruling.
Trump’s second challenge was rooted in the Appropriations Clause, which prohibits “any money from being ‘drawn from the Treasury’ unless such funding has been appropriated by an act of Congress,” Cannon added.
Article 2 of the Constitution creates three categories of federal employees. The first is principal officers, which are people who answer directly to the president. The second are inferior officers, which gives department heads the authority to appoint such officials. The third is simply regular employees hired to work in the government.
Under the interpretation of Article 2 by Cannon, Smith would fall into the third category because his time with the DOJ between 2015 and September 2017 was as an assistant U.S. attorney, which did not require Senate confirmation. Smith resigned after the nomination of Donald Cochran, who became the U.S. attorney for the Middle District of Tennessee under the Trump administration. From there, he went on to work as chief prosecutor for the Kosovo Specialist Chambers in 2018 and stepped down in November 2022.
Are all special counsels unconstitutional?
The decision by Cannon prompted questions about the future of past and current special prosecutors and the mechanisms by which they are appointed and funded in the United States. Legal experts say Cannon did not totally overturn the practice of appointing special counsels.
“Even though she says it’s limited to this case, her ruling casts doubt upon the appointment of special counsels in other cases, most notably Hunter Biden,” Rahmani said, referencing U.S. Attorney David Weiss’s position as special counsel to the Hunter Biden criminal investigation in Delaware.
Rahmani expressed the viewpoint that even the appointment of Weiss could be challenged by the first son, who was recently convicted of three felony counts for lying on a federal firearms form. However, there likely isn’t a one-to-one comparison between Smith and Weiss because of one key distinction: Congress’s role in appointments and appropriations.
“Weiss was already the sitting Senate-confirmed U.S. Attorney,” James Burnham, president of Vallecito Capital and a former clerk to Justice Neil Gorsuch, said.
Burnham emphasized that “nothing would stop the attorney general from giving special counsel status to an existing U.S. attorney.”
“What this means is you can’t pull somebody from just off the street and bring them into the department to serve as a special counsel. Weiss is unaffected by this opinion,” Burnham said.
By contrast, Smith is “neither a principal nor an inferior officer,” according to Richard Kelsey, a local Virginia attorney who spoke to the Washington Examiner.
What does the appeals process look like for both of Smith’s federal indictments?
Any appeal is likely to be resolved after the presidential election, all but guaranteeing that Trump would not face trial until 2025 at the earliest. If Trump is elected president in November, he could order his attorney general to dismiss the case, as well as the 2020 election subversion case.
However, some legal experts, including Rahmani, have suggested there could be a chance for the 11th Circuit to overturn Cannon’s decision.
“I wouldn’t be surprised if her order is overturned by the 11th Circuit or the Supreme Court. Justice Thomas is the only justice who seems persuaded by this type of argument,” Rahmani said.
For the classified documents case, Trump could appeal an 11th Circuit decision to reverse Cannon’s dismissal of the case. From there, he could ask for a rehearing en banc, or before the full court, and he may also seek Supreme Court review as a last resort.
U.S. District Judge Tanya Chutkan, the Washington, D.C., judge who is presiding over the 2020 election subversion case, has not yet been presented with a bid to void Smith’s special counsel status, nor has she even resumed progress on the pretrial stages of that case following the immunity decision.
Chutkan at some point will likely have to weigh in on the issue of Smith’s appointment by Garland, and if she rules against Trump, the defense does not enjoy the benefit of appealing an unfavorable decision until after a potential trial concludes, legal experts told the Washington Examiner.
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For now, court watchers will wait in earnest to see how the 11th Circuit rules and whether the Supreme Court once again is compelled to wade into Trump’s legal travails over this important Article 2 question.
“If the 11th Circuit agrees with Judge Cannon, then the Supreme Court will almost certainly take the case. If the 11th Circuit reverses Judge Cannon, then I think it’s a closer call,” Burnham said, noting there could still be an appetite to review the case even if Trump’s defense loses at the appeals court.
