DAILY CALLER NEWS FOUNDATION—A judge’s ruling that the appointment of special counsel Jack Smith was “unconstitutional” almost inevitably will end up before the Supreme Court, potentially dooming Smith’s Jan. 6 case against former President Donald Trump along with the classified documents case that the judge tossed.
Judge Aileen Cannon ruled that Attorney General Merrick Garland, President Joe Biden’s appointee, didn’t have the authority to name Smith, a private citizen who wasn’t appointed by the president nor confirmed by the Senate, to prosecute the classified documents case against Trump.
Cannon’s decision Monday to dismiss the classified documents case—which comes just weeks after the Supreme Court agreed that former presidents have immunity for official acts committed in office—is good news for Trump. It won’t be limited to the prosecution in Florida, but likely will affect Smith’s other prosecution of the former president in Washington, D.C.
“The Mar-a-Lago documents case has long been considered the strongest one against Trump,” former federal prosecutor Joseph Moreno told the Daily Caller News Foundation, referring to Trump’s Florida residence, where he kept documents he took when he left the White House in January 2021.
“With this decision, it is now indefinitely prolonged and may even fall away,” Moreno said.
Smith will appeal the ruling, his office said Monday. Smith could appeal Cannon’s ruling to the 11th U.S. Circuit Court of Appeals, which would take time and likely result in a circuit split that would make a Supreme Court review almost certain.
“Although Judge Cannon will, no doubt, be attacked by the Left as a political hack who is doing Trump’s bidding, this would be a grossly unfair characterization,” John Malcolm, vice president for The Heritage Foundation’s Institute for Constitutional Government, told the Daily Caller News Foundation.
Malcolm, former deputy assistant attorney general in the Justice Department’s Criminal Division, said Cannon’s 93-page ruling “should be judged on its merits, not on whether someone likes or dislikes the outcome of this particular case.”
Malcolm added:
Indeed, the appointment of special prosecutors vested with almost unlimited authority and without any input from the legislature was one of the grievances cited against King George III in the Declaration of Independence and is the reason why the Constitution’s appointments clause was crafted to give Congress a role in the appointment of special prosecutors. Cannon’s opinion points out precisely why Attorney General Merrick Garland’s appointment of Smith violates the Constitution, since Congress never passed a statute giving Garland such authority.
Trump’s case brought by Smith in Washington, D.C., where Trump was indicted on four counts for alleged efforts to overturn the 2020 presidential election, likely will be affected by Cannon’s decision.
“Technically [District Court Judge Tanya Chutkan] is not bound by Cannon’s decision, and based on her hostility to Trump in the past she likely will not follow it,” Moreno said. “But this allows Trump to raise the same issue and, again, knowing that the Supreme Court will ultimately back him.”
The D.C. Circuit previously rejected the argument Cannon accepted when it ruled on a challenge to special counsel Bob Mueller’s appointment in February 2019 to look into alleged collusion between Russia and the Trump campaign. This means Cannon’s ruling likely won’t have an immediate effect on Trump’s other case, Malcolm said.
“That is the law in the D.C. Circuit, where the Jan. 6 case is pending,” he said.
“The issue of the appointment of Smith should equally impact both the [Florida] and D.C. case, but given the differing positions of the judges to date, they will likely remain in contradiction of one another until this case goes up on appeal,” former federal prosecutor Andrew Cherkasy told the Daily Caller News Foundation. “Even at the Circuit Court level, there will likely remain division, and it will have to go to SCOTUS for clear direction.”
Justice Clarence Thomas weighed in with his concurring opinion in the Supreme Court’s presidential immunity ruling, signaling his belief that Smith’s prosecution “may violate our constitutional structure.”
Cherkasky said “it’s unclear whether the other justices will agree” with Thomas, since “that issue was not specifically before the court.”
“It will be many months of discussions within the court to arrive at a majority opinion on this issue, and there is not good precedent to predict how they will decide this issue,” he said.
Moreno argued that dropping the case entirely would likely be “the smartest political decision” in light of Biden’s “own history in mishandling classified documents.”
“Bottom line is that based on last week’s [attempted] assassination of Trump, President Biden can appear to be a conciliatory force; he can drop these cases, all of which have significant legal questions and political ramifications,” Moreno told the Daily Caller News Foundation.
“If he is serious about tamping down the hostility and anger in our nation today, let’s hope he actually backs his words with action,” Moreno said.
Originally published by the Daily Caller News Foundation
