(WASHINGTON) — Monday’s surprise ruling by federal Judge Aileen Cannon dismissing former President Donald Trump’s classified documents case appears unlikely to impact other cases involving Trump — or other cases brought by special counsels.
Cannon ruled Monday that Jack Smith’s appointment as special counsel overseeing Trump’s documents case was unconstitutional because Smith was not appointed by the president or confirmed by Congress, leading her to dismiss the entire case.
“The Framers gave Congress a pivotal role in the appointment of principal and inferior officers,” Cannon wrote in a lengthy order. “That role cannot be usurped by the Executive Branch or diffused elsewhere — whether in this case or in another case, whether in times of heightened national need or not.” she wrote.
The ruling, on its face, seems to undermine the core of the special counsel statute — that an independent arbiter is necessary to investigate and possibly prosecute politically fraught matters.
But the ruling doesn’t put all special counsels under the microscope; Cannon’s order draws a distinction between other special counsels and Smith, who was never confirmed to any post by Congress.
Special counsels — like David Weiss, who is investigating President Joe Biden’s son Hunter Biden — have typically served previously as U.S. attorneys, who are appointed by the president and confirmed by the Senate.
Smith, in contrast, was previously the acting U.S. attorney for the Middle District of Tennessee and was working for the International Criminal Court at the Hague prosecuting war crimes when he was tapped by Attorney General Merrick Garland to lead both the classified documents probe and the federal election interference investigation.
Accordingly, Smith never went through a congressional confirmation process.
“In the end, there does appear to be a ‘tradition’ of appointing special-attorney-like figures in moments of political scandal throughout the country’s history. But very few, if any, of these figures actually resemble the position of Special Counsel Smith,” Cannon wrote in Monday’s decision. “Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision.”
Attorneys for Hunter Biden last year filed a motion to dismiss his gun prosecution citing the same Appropriations Clause at the heart of Cannon’s ruling. U.S. District Judge Maryellen Noreika swiftly rejected Biden’s bid.
In the classified documents case, Smith could appeal Cannon’s the ruling to the U.S. Court of Appeals for the Eleventh Circuit.
Trump pleaded not guilty last year to 40 criminal counts related to his handling of classified materials after leaving the White House, after prosecutors said he repeatedly refused to return hundreds of documents containing classified information and took steps to thwart the government’s efforts to get the documents back. The former president has denied all charges.
Judge Cannon noted that her ruling does not apply to other jurisdictions, meaning the order may not apply to Smith’s Jan. 6 election interference case, in which Trump last August pleaded not guilty to charges of undertaking a “criminal scheme” to overturn the results of the 2020 election. The former president has denied all wrongdoing.
That case is currently delayed following the U.S. Supreme Court’s ruling that the former president is entitled to presumptive immunity from criminal prosecution for official acts taken while in office. Justice Clarence Thomas, in a concurring opinion in the Supreme Court ruling, took the position that Smith had been named special counsel without a proper legal basis, leading to speculation about what role that might play in Judge Cannon’s decision-making.
Although Judge Thomas did not name Cannon in his opinion, he said that lower courts should look at the question of how Smith was appointed.
Cannon’s ruling should also have no effect on the Georgia election interference case, which is currently paused while Trump appeals the court ruling that allowed Fulton County DA Fani Willis to stay on the case.
Trump and 18 others pleaded not guilty last August to all charges in a sweeping racketeering indictment for alleged efforts to overturn the results of the 2020 presidential election in the state of Georgia. Trump has denied all charges.
Trump is also awaiting a decision by New York Judge Juan Merchan on whether the Supreme Court’s immunity ruling will impact Trump’s hush money conviction, which Trump’s attorneys argue was “tainted” by evidence and testimony that the Supreme Court’s ruling now makes off-limits.
The former president was found guilty in May on 34 felony counts of falsifying business records related to a 2016 hush money payment to adult film actress Stormy Daniels in order to boost his electoral prospects in the 2016 presidential election.
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