Trump Judge’s Ruling on Special Counsel Veers From Recent Cases

A US judge broke fresh legal ground by dismissing a criminal case accusing Donald Trump of mishandling classified documents, ruling that Special Counsel Jack Smith was improperly appointed.

By concluding Attorney General Merrick Garland lacked authority to appoint Smith or fund his work, US District Judge Aileen Cannon veered Monday from decades of legal tradition upholding the work of special prosecutors in high-profile criminal cases.

With her stunning rebuke, Cannon handed the former president another major legal victory just two weeks after the US Supreme Court said presidents are at least partially immune from prosecution for official acts.

The dismissal comes as Trump accepted the presidential nomination at the Republican National Convention in Milwaukee and two days after he survived an assassination attempt over the weekend that left him injured. Here’s what to know:

What was Smith appointed to do?

Garland appointed Smith in November 2022 to examine whether Trump improperly held onto dozens of classified documents after he left office in January 2021. Smith had been a federal prosecutor but left the Justice Department to work as a prosecutor of war crimes for an international court in Europe and was a private citizen at the time of his appointment. FBI agents searched Trump’s Mar-a-Lago estate in August 2022, seizing more than 100 documents with classified markings. Trump was indicted last summer, one of four criminal cases he faced.

When can a special counsel be appointed?

Under Justice Department regulations, the attorney general can appoint a special counsel for a criminal investigation under “extraordinary circumstances,” and if it would be in the public interest to do so. Garland has appointed three special counsels — Smith, to investigate Trump; David Weiss, to probe Hunter Biden’s taxes and gun purchase; and Robert Hur, to examine President Joe Biden’s handling of classified documents.

What does the US Constitution have to do with this?

The US Constitution has a section known as the “appointments clause,” which says “officers” of the US must be appointed by the president and confirmed by the Senate. They are divided into “inferior” and “principal” officers. Only the president, or department heads like the attorney general, may appoint inferior officers. Principal officers, on the other hand, need Senate confirmation.

In this case, Trump argued that any special counsel is a principal officer requiring Senate confirmation, while the Justice Department said they are inferior officers that Garland can appoint directly.

Trump also said the Constitution’s “appropriations clause” requires that no federal money may be spent unless it’s approved by an act of Congress. The Justice Department disagreed.

Which interpretation did Judge Cannon cite?

Cannon, who was nominated by Trump in 2020, was persuaded by arguments from his lawyers, ruling that the entire special counsel framework is flawed.

The US has appointed “special-attorney-like figures in moments of political scandal throughout the country’s history,” Cannon ruled in her 94-page opinion. “But very few, if any, of these figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision.”

Smith’s appointment, she said, “undermines the separation-of-powers” spelled out in the appointments clause and “destabilizes Congress’s carefully crafted statutory structure” for the Justice Department.

How is Cannon’s ruling a break from legal tradition?

Courts have long upheld that special prosecutors — who have operated under different titles and with different rules through the decades — have the authority to proceed. But Cannon said the framework now is all wrong, and the Justice Department can’t even rely on the Supreme Court’s unanimous ruling in 1974 that President Richard Nixon must produce tape recordings and other evidence related to the Watergate scandal. Cannon said the Nixon ruling is not binding precedent on the question of the attorney general’s statutory appointment authority.

What did Clarence Thomas have to do with Cannon’s ruling?

When the Supreme Court ruled on July 1 that presidents have immunity for official acts, Justice Clarence Thomas was part of the 6-3 majority that ruled in Trump’s favor. That case had to do with Smith’s indictment of Trump over his role in trying to overturn the 2020 election. In a separate concurring opinion, Thomas said he believed there were “serious questions” over whether Smith’s appointment was lawful. Cannon cited his opinion in her ruling. If the case ends up in the Supreme Court, Trump would presumably get a sympathetic ear from Thomas.

Will the Justice Department appeal?

Yes. Hours after the ruling, Smith spokesman Peter Carr said the Justice Department will appeal the dismissal because it “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 would presumably go to the 11th Circuit Court of Appeals, which overturned an earlier Cannon decision on the classified documents probe.

In December 2022 — months before Trump was indicted — a three-judge panel there found that Cannon was wrong to interfere with the ongoing criminal investigation by appointing a special master to review material seized from Mar-a-Lago during a judicially-authorized FBI search.

--With assistance from Zoe Tillman.

To contact the reporter on this story:
David Voreacos in New York at dvoreacos@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Peter Blumberg

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