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District Judge Aileen Cannon said in a 93-page ruling that the case should be tossed out based on her finding that special counsel Jack Smith, who brought the charges, was unlawfully appointed by Attorney General Merrick Garland.
By Devan Cole, Marshall Cohen and Hannah Rabinowitz, CNN
Washington (CNN) — A federal judge’s decision to dismiss Donald Trump’s classified documents case on Monday was a surprising end to what was once seen as one of the strongest criminal cases brought against the former president last year.
District Judge Aileen Cannon said in a 93-page ruling that the case should be tossed out based on her finding that special counsel Jack Smith, who brought the charges, was unlawfully appointed by Attorney General Merrick Garland.
Her rationale came purely on technical legal grounds and was not based on specifics of Trump’s alleged actions or the strength or weakness of the charges. In fact, she only mentioned the details about Mar-a-Lago and classified documents in one cursory paragraph within the 93-page ruling.
There may be a path for Smith to revive the case, Cannon noted in her ruling, and Smith can appeal the decision.
But the shock decision by Cannon, a Trump appointee whose handling of the case has drawn widespread scrutiny, still handed an enormous legal and political win to the former president on the same day that the Republican National Convention kicked off in Milwaukee.
Trump, soon to be confirmed as the Republican Party’s 2024 presidential nominee, quickly celebrated Cannon’s ruling Monday and, without evidence, again claimed that the now-dismissed case was part of a coordinated political hit job orchestrated by the Justice Department.
Here are the takeaways from Cannon’s ruling:
Cannon said that Garland’s appointment of Smith in November 2022 violated the US Constitution’s Appointments Clause, which gives presidents the power to appoint officials who must then be confirmed by the Senate.
Smith’s position, the judge wrote, “effectively usurps” Congress’ “important legislative authority” by giving the executive branch, specifically the Justice Department, the power to appoint an official like him.
She concluded that, “Adopting the position of the Special Counsel allows any Attorney General, without Congressional input, to circumvent this statutory scheme and appoint one-off special counsels to wield the immense power of a United States Attorney,” a position that requires Senate confirmation.
“If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so,” Cannon wrote.
Defense attorneys had argued to the judge that Garland’s appointment of Smith was unconstitutional, writing in court papers earlier this year that the Appointments Clause does not afford the attorney general the power to appoint “without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States.”
In appointing Smith, Garland cited a law that grants him the authority to appoint officials to investigate matters “as may be directed by the Attorney General.” Trump’s own Attorney General Bill Barr cited the same statute to appoint then-special counsel John Durham.
Cannon sided with Trump in his other major contention against Smith’s appointment as well – that the special counsel should not be receiving indefinite financing to support his prosecution.
Trump’s assertion was rooted in the Appropriations Clause of the Constitution. He argued that Smith’s funding cannot come from the Treasury unless it has been appropriated by an act of Congress.
“For more than 18 months, Special Counsel Smith’s investigation and prosecution has been financed by substantial funds drawn from the Treasury without statutory authorization, and to try to rewrite history at this point seems near impossible,” Cannon wrote. “The Court has difficulty seeing how a remedy short of dismissal would cure this substantial separation-of-powers violation, but the answers are not entirely self-evident, and the caselaw is not well developed.”
The appropriation reserved for independent prosecutors doesn’t apply to Smith because he is not sufficiently independent from the Justice Department, she said.
She noted that as of September 2023, Smith’s direct expenditures exceeded $12.8 million. He would have access to additional funds until the end of his investigation.
Cannon left open a potential pathway in her ruling for the classified documents case to be revived.
The Justice Department “could reallocate funds to finance the continued operation of Special Counsel Smith’s office,” she wrote, but said it’s not yet clear whether a newly-brought case would pass legal muster.
Prosecutors told Cannon in a hearing last month that the Justice Department was “prepared” to fund Smith’s cases through trial if necessary.
Smith’s team could also appeal the ruling, though any appellate challenges would make a pre-inauguration trial almost certainly out of reach.
The ruling comes exactly two weeks after Justice Clarence Thomas publicly aired similar doubts about the constitutionality of Smith’s appointment in a concurrence the conservative jurist penned in the blockbuster case granting the former president partial immunity.
Cannon leaned on Thomas’ concurrence in her ruling Monday, repeatedly quoting from part of it as she explained her decision to throw out the documents case.
In that matter, Thomas sided with Chief Justice John Roberts and the court’s other conservatives in giving Trump some presidential immunity. But Thomas wrote separately to raise questions about whether Garland violated the Constitution when he appointed Smith as special counsel, an argument that wasn’t made by Trump’s attorneys before the trial-level judge overseeing that criminal case.
“There are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed,” Thomas wrote in his concurrence in the election case. “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
“It’s hard to imagine that Justice Thomas wrote his concurrence, which addressed an issue that was not before the Supreme Court, with no awareness that it would be used this way,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
The ruling from Cannon is an outlier that embraced a longshot legal theory that plenty of other judges have already rejected during previous special counsel investigations.
President Joe Biden’s son, Hunter Biden, attempted earlier this year to throw out his criminal cases based on the same theory that Trump brought before Cannon. (He is being prosecuted by a separate special counsel, David Weiss.) Federal judges in California and Delaware rebuffed his arguments, and federal appeals courts in both jurisdictions refused to get involved.
And during the Trump-Russia investigation, multiple Trump allies similarly attempted to derail special counsel Robert Mueller’s work. But multiple federal judges in Virginia and Washington, DC, upheld Mueller’s appointment.
Still, with all this history, Cannon held a hearing on the issue several weeks ago, pushing attorneys to explain exactly how Smith’s investigation into Trump was being funded.
The judge’s questions were so pointed that special counsel attorney James Pearce argued that even if Cannon were to throw out the case due to an appointments clause issue that the Justice Department was “prepared” to fund Smith’s cases through trial if necessary.
In the ruling, Cannon claimed Smith was operating “with very little oversight or supervision.”
She noted that, during last month’s hearing, “the Special Counsel refused to answer the Court’s questions regarding whether the Attorney General had played any actual role in seeking or approving the indictment in this case.”
The federal regulations that govern the special counsel’s office require Smith to coordinate some of his activities with Justice Department leadership. At the hearing, Smith’s team “appeared to acknowledge some degree of actual oversight consistent with the Regulations,” Cannon said. But their tight-lipped answers were clearly not enough to satisfy the judge – and she pointed out that they “resisted” to offer details.
Months before Smith was appointed, the investigation escalated in tremendous fashion in August 2022, when FBI agents raided Mar-a-Lago. The court-approved search turned up troves of documents with classification markings, as prosecutors suspected. Garland later said he “personally approved the decision to seek a search warrant,” indicating his hands-on involvement in at least one critical decision in this long-running investigation.
At a congressional hearing last month, Garland said he didn’t regret appointing Smith. Under questioning from GOP lawmakers, Garland noted that past judges upheld the legality of Mueller’s appointment during his investigation and that the question “has been adjudicated.”
Cannon suggested in her ruling that she was leaving some of Trump’s major points in his appropriations clause challenge for review by an appeals court.
One of the arguments that Trump raised was that Smith’s appointment gave him a significant amount of power without the oversight of Congress. Former Attorney General Edwin Meese and Citizens United argued the same, writing that Smith’s appointment “severely undermines” the constitutional order.
Cannon wrote in her ruling Monday that the issue was “a point worthy of consideration given the virtually unchecked power given to Special Counsel Smith under the Special Counsel Regulations.”
“Ultimately, however, after examining the broad language in Supreme Court cases on the subject—and seeing a mixed picture, even if a compelling one in favor of a principal designation—the Court elects, with reservations, to reject the principal-officer submission and to leave the matter for review by higher courts,” she wrote.
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