U.S. District Judge Aileen Cannon dismissed the classified documents case against Donald Trump on Monday. The Trump appointee wrote that special counsel Jack Smith’s appointment “violates the Appointments Clause of the United States Constitution.”
The ruling followed a hearing on the subject in which Trump and his supporters pressed that argument. In the Supreme Court immunity ruling earlier this month, Justice Clarence Thomas wrote a separate opinion raising questions about the lawfulness of Smith’s appointment, which Cannon cited in her ruling dismissing the case against the former president.
The appointments clause states:
[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … 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 Heads of Departments.
Citing that provision, Cannon concluded that Attorney General Merrick Garland didn’t have the authority to appoint Smith, who isn’t a Senate-confirmed U.S. attorney. The bottom line of her lengthy opinion is that:
None of the statutes cited as legal authority for the appointment — 28 U.S.C. §§ 509, 510, 515, 533 — 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 Court concludes that none vests the Attorney General with authority to appoint a Special Counsel like Smith, who does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction.
Cannon separately found another constitutional violation regarding Smith’s funding, under the Constitution’s appropriations clause, which the defense also raised in the hearing.
Smith can appeal the dismissal and the Supreme Court may ultimately determine the lawfulness of Smith’s appointment. No other justices joined Thomas’ opinion but Smith’s appointment wasn’t at issue in the immunity case, so it’s unclear how many other justices may agree with Thomas.
Trump was charged last year with unlawfully retaining national defense information and obstruction. He pleaded not guilty. He was charged alongside two co-defendants, Walt Nauta and Carlos De Oliveira, who also pleaded not guilty. The case’s dismissal applies to them as well.
Smith brought the federal charges in the Southern District of Florida, where Cannon sits. She was randomly assigned to the criminal case, as is customary. But her assignment was notable because she had ruled for Trump during previous litigation following the Mar-a-Lago search warrant. Cannon was reversed during that litigation by the federal appeals court that could also review her dismissal of the indictment if Smith appeals.
Monday’s dismissal is an escalation of Cannon’s unusual handling of the case that had largely favored Trump to this point, raising questions about both her lack of experience and her disposition toward the former president who appointed her. Cannon had been handling motions slowly and there wasn’t an active trial date when she dismissed the case. So it already wasn’t likely to be tried before the election and, if Trump wins the election, he’s poised to get rid of both of his federal criminal cases himself. The question now, if Trump loses the election, is whether it will ever go forward, and whether Smith will seek to convince the appeals court to remove Cannon from the case in connection with any appeal he takes. But even if Cannon’s dismissal is reversed on appeal, that doesn’t mean that an appeals court would necessarily kick her off the case. So there’s a scenario in which Smith could get the dismissal reversed on appeal but the case would then go back to Cannon, where she would still need to rule on many other pretrial issues before any trial could go forward. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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