Special Counsel Appeals Judge’s “Nonsensical” Dismissal of Trump Classified Documents Theft Case
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On July 15, 2024, Florida U.S. District Judge Aileen Cannon, already harshly criticized by her peer judges for a number of strange rulings and court directives, ruled that the criminal prosecution of Donald Trump over his illegal retention of many boxes of highly sensitive classified documents after he left office as president was being tossed out.
Her justification for rejecting the case outright was that in her opinion Jack Smith’s appointment by U.S. Attorney General Merrick Garland in November 2022 as Special Counsel in this case was made in violation of the U.S. Constitution.
“The Appointments Clause [of the Constitution] sets as a default rule that all ‘Officers of the United States’, whether ‘inferior’ or ‘principal’ must be appointed by the President and confirmed by the Senate,” Cannon wrote in her decision.
Her summary continued, saying that the Appointments Clause directs 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.”
“All actions that flowed from [Smith’s] defective appointment including his seeking of the Superseding Indictment on which this proceeding currently hinges were unlawful exercises of executive power,” Cannon continued.
“Because Special Counsel Smith ‘cannot wield executive power except as article II provides,’ his attempts to do so are void and must be unwound,” she explained further. “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.’”
“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 concluded.
That dismissal effectively dumped in the trash in an only slightly more disorderly manner than Trump’s unlawful scattering of highly classified documents he had stolen from the White House at his home in Mar-A-Lago in Florida, all the physical evidence gathered to date and depositions taken in what many saw as the most serious crime Trump was under investigation for since he left office.
With that one quick jab, the Florida judge also dismissed all 42 felony charges filed against Donald Trump in the case.
Trump and his attorneys declared instant victory in the case. Trump also implied in multiple speeches to his MAGA followers soon after that this was pure vindication for Trump, and that Cannon’s ruling was the next best thing to an outright acquittal.
The problem with the Florida judge’s decision to dismiss the 47 felony charges in this case on grounds that Jack Smith was appointed improperly is that, at least according to multiple other court rulings, including one which came before the U.S. Supreme Court in the 1970s involving the prosecution of then-president Richard Nixon, and over fifty years of this approach to appointing Special Counsel being common practice, Cannon is simply dead wrong about how to interpret the Constitution in this matter.
That was the point a spokesperson for Smith made clear in a statement released the day Cannon issued immediately following her July 15 decision.
“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 spokesperson wrote.
Then it announced it would challenge that decision, and that Smith had the full backing of the Attorney General in pushing back against Cannon’s odd interpretation of the Constitution.
“The Justice Department has authorized the Special Counsel to appeal,” Smith’s spokesperson added in that formal statement.
While it was considered close to perfect certainty Smith’s team would follow through with their appeal of the dismissal, almost nothing was heard in the matter the one and a half months since Cannon’s ruling. Then yesterday, on the day before the last possible day he would be allowed to file his appeal, Smith filled the necessary briefs challenging the ruling with the 11th Circuit Court of Appeals.
In Smith’s 81-page rebuttal to Cannon’s ruling, he stated unequivocally not just that Cannon was wrong in her decision, but that she had managed to ignore numerous court rulings which came down in favor of the Justice Department’s right to appoint Special Prosecutors like Smith. It also said she had outright misread a minimum of four separate federal statutes – sections 509, 510, 515, and 517 -- which provide the Justice Department with this authority.
It further summarized how numerous statutes not only gave the Justice Department the authority to manage its department as it sees fit, but to hire appropriate personnel to accomplish its tasks – such as is the case in how it brought Jack Smith on board – as needed.
“The Special Counsel is properly funded through the congressionally enacted ‘permanent indefinite appropriation’ to ‘pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to the provisions of 28 U.S.C. 591 et seq. or other law’,” the new filing continued.
“The Attorney General validly appointed the Special Counsel, who is also properly funded. In ruling otherwise, the district court deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the Special Counsel’s appointment, and took inadequate account of the longstanding history of Attorney General appointments of special counsels,” Smith’s response to Cannon’s dismissal noted further.
The legal analysis by Smith and his staff went into even more detail attacking Cannon’s wholesale wrongful interpretation of numerous straightforward legal grants of power to the Attorney General to make such appointments.
“The district court’s contrary reasoning lacks merit,” Smith’s arguments continued. “Its focus on the absence of the word “appoint” in Section 515(b) ignores that the term ‘retain’ is synonymous with ‘appoint’ as used [in] Section 515—as the statute’s enactment history makes clear—and that the word ‘appoint’ appears in Section 515(a), confirming that the statute provides appointment authority.”
The argument continues, this time schooling Cannon not just in the fine points of law but also her ability to read plain English:
“The district court’s determination that the phrase ‘specially retained’ in Section 515(b) is a past-tense verb that only applies to already-retained attorneys misunderstands the statute’s grammatical construction—'retained’ and ‘appointed’ are past participles that take their tense from the surrounding present-tense verbs—and results in a nonsensical interpretation under which an attorney must be hired and only then (potentially minutes later) could become ‘specially retained’ as a special counsel… [Italics and boldface type added.]
“Finally, the district court erroneously treated two provisions—28 U.S.C. §§ 519 and 543, which together clarify that the Attorney General’s supervision of all federal litigation encompasses U.S. Attorneys and any attorneys assisting them—as a limit on the entirely independent authority under Section 515 for an Attorney General to appoint a special counsel to assist him. […]
“The district court erroneously disregarded this history as “spotty” or “ad hoc,” giving undue emphasis to superficial differences in the appointment and roles of certain special and independent counsels. The district court’s rationale could jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch.”
“The district court’s contrary conclusion depended solely on its erroneous determination that no ‘other law’ [besides the Appointments Clause of the constitution that Judge Cannon cited] supported the Special Counsel’s appointment,” the response goes on. “But Sections 509, 510, 515, and 533 authorized the Attorney General to appoint the Special Counsel, as the Supreme Court held in Nixon… Because the premise was wrong, so was its conclusion.”
According to the terms of the filing, Trump’s attorneys have up to 30 days to respond to Smith’s devastating dissection of Cannon’s decision. That means they must plead their case in support of Cannon’s ruling by September 26 at the latest.
Based on what has already happened in this case, legal experts expect Trump’s attorneys to respond mostly reinforcing Cannon’s flawed review of past law and court precedents on this matter. But they also expect the counter to Smith’s filing to attempt to muddy the case by claiming Trump had absolutely immunity to take the documents from the White House as the previous president of record, leveraging the July 1 Supreme Court decision which provided presidents with absolutely immunity for official acts while they were president.
Trump’s attorneys are also expected to file motions asking for a delay of a response to Smith’s documents. That would probably involve claims that Trump is too busy campaigning to have time to be involved in reviewing or guiding their work.
The 11th Circuit Court of Appeals is expected to reject any moves to delay the date by which Trump’s lawyers must respond, on the grounds that they have known Smith would be appealing and should have been prepared.
The Appeals Court will also reject any attempt to inject questions about the merits of the classified documents retention case into their legal review. Since Cannon’s dismissal of the case is based in its entirety on whether the Justice Department had the authority to hire and the right to apply its financial resources to support Jack Smith as Special Prosecutor in this matter, that will be the sole issue the Appeals Court will rule upon.
Since the issues in the appeal appear so straightforward, it is entirely possible the Appeals Court will make its decisions in just a matter of weeks after the end of September filing deadline Trump’s attorneys must deliver against for their response.
Assuming that happens and also considering the high likelihood that this Court will back Smith’s response and reinstate him, the next step for Trump’s attorneys would be to appeal once again to the U.S. Supreme Court to reverse that decision.
The question then will be whether the highest court in the country decides to consider the case or not. If it does, it would almost certainly push the date for hearings until after the upcoming November election. It might also authorize a stay of the 11th Circuit Court of Appeals’ reversal.
This would also put the Supreme Court in a uniquely difficult political spot at a time when even the decision to review the case could be considered a “win” for Trump in the final weeks before the November presidential election.
What comes next is even more complicated. If Trump wins the election, a pending review before the U.S. Supreme Court is effectively moot, since Trump would move quickly upon occupying the White House to block all further prosecutions against himself. If he loses the election, even if the Supreme Court were to rule in Smith’s favor, the case would probably not restart until late this year at best, with the final court trial continually being delayed well until next year.
It is also possible a win by Smith with both the 11th Circuit Court and the Supreme Court, assuming that happens, might be quickly followed by a motion to dismiss Judge Aileen Cannon as presiding judge over the case. That would take time to implement, but in the long run it could result in swifter prosecution – and perhaps eventual justice – in this important criminal precedent involving a former president.