Polarization Surges In U.S. After Judge Dismisses Classified Trump Documents Withholding Case

News Analysis

On July 15, U.S. District Court Judge Aileen Cannon for the Southern District of Florida, West Palm Beach Division, dumped into the trash the criminal case against Donald Trump for unlawfully removing from the White House and holding onto a extensive stash of classified documents.

Cannon, a judge appointed by Trump to the post, and with only three years of experience when she was assigned to what was already considered the most explosive and serious case against the former occupant of the White House, based her ruling on two key criteria. Both were brought to her in a motion from Trump’s attorneys in the latest move to delay or halt indefinitely any formal conclusion in the case. And both were aimed at removing Department of Justice Special Prosecutor Jack Smith from the case, or at least force yet another extensive multi-month delay in the case, long enough for Trump perhaps to win the upcoming election for president.

In a 93-page decision, Cannon first attacked the core issue of Jack Smith’s appointment to the post of Special Counsel. Smith was appointed to the position by U.S. Attorney General Merrick Garland on November 18, 2022, and given authority and responsibility to manage two separate criminal prosecutions which were about to begin at that time.

“The first is the investigation, as described in court filings in the District of Columbia, into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021,” read the official DOJ announcement of Smith’s new role. “The second is the ongoing investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation, referenced and described in court filings submitted in a pending matter in the Southern District of Florida.”

As to why a Special Counsel was warranted in these matters, Attorney General Garland emphasized that he considered it critical to put someone in charge of the case who would operate autonomously both from Garland and from the White House.

“Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel,” Garland said as part of the same official statement. “Such an appointment underscores the Department’s commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law.”

Once appointed, Special Prosecutor Smith supervised investigation of the estimated many hundreds of documents Trump had illegally taken from the White House as Joe Biden was being sworn in as the new President. With some stored in Trump’s Mar-A-Lago bathroom, bedroom, office, and storerooms, and others reportedly removed from the residence and airlifted across state lines to another Trump property, the documents were never stored securely and  there is also evidence he unlawfully shared them with others, even as neither nor those he showed the documents to had any security clearance authorizing them to view or share the information. Further photo evidence and depositions from individuals Smith’s team collected in the matter show the former president and his staff deliberately obstructed the workings of the FBI In collecting those documents, after a search warrant was duly authorized and served on Trump and the Mar-A-Lago premises.

Special Prosecutor Smith also proceeded with a parallel investigation into whether Trump and his associates “unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021,” as mentioned in Attorney General Garland’s announcement. That case is still pending in Washington, D.C.

How Judge Aileen Cannon Arrived at Her Decision

As in most other motions filed before her in the classified documents case, Judge Cannon based her arguments, as to why Jack Smith should never been put in charge as a special counsel, almost exclusively on legal constructions offered up by Trump’s counsel.

She first rejected Garland’s move to put Smith in charge of the case as a violation of the Appointments Clause of the U.S. Constitution. As cited by Cannon, that legal language, which appears in Article II, § 2, cl. 2 of the Constitution, “provides the exclusive means for appointing ‘Officers of the United States’.”

“The Appointments Clause sets as a default rule that all ‘Officers of the United States’, whether ‘inferior’ or ‘principal’” ,Cannon’s ruling continues,”must be appointed by the President and confirmed by the Senate. Id. It then goes on to direct that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in Heads of Departments.”

As acknowledged by and stipulated to by Smith, he is an “inferior” officer. And, although Cannon did not reference this, Smith is, like all lawyers of any stature throughout the U.S., automatically considered an “Officer of the Court” by having been certified as having the legal right to represent plaintiffs or defendants in court.

According to Cannon, since Smith is an Officer of the Court, if he was appointed in this current capacity as Special Counsel the only constitutional way that could have happened would have been with Biden nominating him and the Senate approving him for this role.

For this part of her ruling, a significant weighing factor for Cannon was what Justice Clarence Thomas wrote in his concurring opinion on the July 1 Supreme Court decision granting U.S. Presidents full immunity for all “official acts”. Chief Justice John G. Roberts, Jr. wrote the official majority decision ruling in that case. Justice Thomas wrote a concurring opinion attached to that. In it, Thomas declared his agreement with the Chief Justice’s documentation of the ruling and then added something more.

Thomas wrote in his opinion that the appointment of Jack Smith was “invalid unless a statute”, passed as a law, “created the Special Counsel’s office and gave the Attorney General the power to fill it.” Since no such law was in place either immediately before Smith was appointed or since, Thomas concluded that means Smith was not legally appointed to the position.

Judge Cannon leans heavily on this concurring opinion, even though the concurring was not signed off by even one other justice, and despite that it was not even part of the issues being brought before the Supreme Court as part of the presidential immunity case. She referenced Thomas’ comments on this multiple times in her ruling, citing it as if it were legal precedent rather than just one person’s interpretation of the law, with no weight behind it from the rest of the Court.

The other legal challenge Trump’s lawyers filed against Smith becoming Special Prosecutor in this matter involves the Constitution’s Appropriations Clause. In yesterday’s decision, Cannon writes that Art. I, § 9, cl. 7 of the Constitution “prohibits any money from being ‘drawn from the Treasury’ unless such funding has been appropriated by an act of Congress.” Since Special Prosecutor Smith’s investigation, legal proceedings, and all expenses related to that are being paid by the Department of Justice, which in turn receives its funding from the Treasury, Cannon interprets the Constitution as declaring that he is not entitled to funding unless Congress has previously approved it.

Special Prosecutor Smith’s office argued that he was being legally funded by the Attorney General under a process known as “indefinite appropriation”.

To Judge Cannon, the combined two arguments say that the Department of Justice has no right either to appoint Jack Smith as Special Counsel or to pay the expenses incurred by his prosecution of the case.

The case defies decades of legal precedent in the matter, virtually all of which defends the U.S. Attorney General’s right to appoint Special Counsel for various cases as he or she sees fit. In her legal brief, Judge Cannon also artfully dodges any serious consideration of the precedent set in the case of the United States v. Richard M. Nixon. The Court at that time ruled that the Justice Department had the authority to structure the role of special prosecutor similarly to the current matter, and sided with the prosecution’s demand that President Nixon must turn over the now notorious White House tapes and other documents, materials which eventually sealed the fate of the president in the Watergate cover-up and led to his resignation from office.

That ruling has stood now as the standing precedent in matters like this for five decades. It has also withstood numerous attempts to overturn it since that time.

With Cannon’s ruling filed, the case is now officially dismissed without prejudice. All pending motions and requirements for both parties in the classified documents case are also officially cancelled, effective immediately.

She also added in her decision that, “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.”

“Because Special Counsel Smith ‘cannot wield executive power except as article II provides,’” she went on, “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.’”

Reactions to the Ruling

When Cannon’s dismissal of the case was announced, Senate Majority Chuck Schumer reacted strongly against this gross miscarriage of justice.

“This breathtakingly misguided ruling flies in the face of long-accepted practice and repetitive judicial precedence,” Majority Leader Schumer wrote in a post on the social media platform X. “It is wrong on the law and must be appealed immediately. This is further evidence that Judge Cannon cannot handle this case impartially and must be reassigned.”

On the other side of the aisle, Representative Matt Gaetz, a Republican from Florida, commended the ruling. In a post he also made on the social media platform X, posted a photo of the Judge along with the sentence, “Future Supreme Court Justice Cannon.”

Jack Smith will immediately appeal the ruling.

“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,” Peter Carr, a spokesperson for Special Prosecutor Smith’s office, wrote in a statement.

 “The Justice Department has authorized the Special Counsel to appeal the court’s order,” Carr added, just in case Judge Cannon and Trump’s attorneys might complain that there was no legal approval for the action – or the funds needed – to appeal the case.

The appeal is important not just to the classified documents case. If an appeals judge in Trump’s January 6 election obstruction case currently in process in Washington, D.C. were to agree with Judge Cannon’s logic, Jack Smith could be knocked out as special prosecutor there too, and that case also would be dismissed.