Donald Trump’s criminal case on charges that he illegally retained classified documents at his Mar-a-Lago club was dismissed on Monday after the presiding judge sided with the former president and ruled that the special counsel who brought the prosecution had been improperly appointed.
The stunning decision by Aileen Cannon, the US district judge appointed by Trump, found that the appointment of Jack Smith as special counsel violated the US constitution as he had not been named to his post by the president or confirmed by the Senate.
Cannon effectively ruled that there was no statute that authorized a special counsel to bring charges in the Trump case, and previous court rulings – including by the US supreme court in the landmark Richard Nixon case – were not binding on her decision.
“Because Special Counsel Smith’s exercise of prosecutorial power has not been authorized by law, the court sees no way forward aside from dismissal of the superseding indictment,” Cannon wrote in the 93-page decision.
The ruling cast aside previous court decisions that upheld the use of special prosecutors stretching back to the Watergate era, and removed a major legal threat to Trump on the opening day of the Republican national convention, where he is set to accept the GOP nomination for president.
Prosecutors are expected to challenge the ruling at the US court of appeals for the 11th circuit, and could ask the appeals court to reassign the case to a different federal judge in Florida if Cannon’s decision is overturned.
“The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel. The Justice Department has authorized the Special Counsel to appeal,” a spokesperson for Smith said in a statement.
Whether the 11th circuit overturns Cannon could be as significant as the ruling itself. If Cannon’s decision is reversed and a new federal judge takes control of the case, it could breathe new life into the case even if the case may not go to trial for years.
Trump was charged last year with violating the Espionage Act over his retention of classified documents at Mar-a-Lago and obstructing the justice department’s attempts to retrieve them, including by partially defying a grand jury subpoena. Trump had pleaded not guilty.
At issue is Trump’s argument that the special counsel position was not a position created by statute by the constitution, and therefore any actions he took with that prosecutorial power were not authorized by law.
Prosecutors contended in response that the judge did not need to consider whether to toss the indictment since Smith was an “officer”, deputized by the attorney general to prosecute the case as allowed under the appointments clause of the constitution.
The judge sided with Trump’s position. Cannon found that the appointments clause did not allow Garland to appoint a prosecutor effectively working as something tantamount to a US attorney, a job that requires Senate confirmation, and the only remedy was to dismiss the indictment.
“All actions that flowed from his defective appointment including his seeking of the Superseding Indictment on which this proceeding currently hinges were unlawful exercises of executive power,” Cannon wrote.
“Because Special Counsel Smith ‘cannot wield executive power except as article II provides,’ his attempts to do so are void and must be unwound. Defendants advance this very argument: ‘any actions taken by Smith are ultra vires ... And the court sees no alternative course to cure the unconstitutional problem.’”
Prosecutors had argued that they were funded by the justice department’s budget, through a mechanism called the “indefinite appropriation”, which was allowed because the special counsel was authorized under the appointments clause.
But Cannon took her reasoning to its logical end to find that if Smith’s appointment was invalid, then prosecutors could not rely on the appointment to justify using the “indefinite appropriation”.
“Both sides agree that ‘other law,’ for present purposes, is the collection of statutes cited in the appointment order. For all of the reasons the court found no statutory authority for the appointment, Special Counsel Smith’s investigation has unlawfully drawn funds,” Cannon wrote.
