The federal judge overseeing Donald Trump’s Mar-a-Lago classified documents scandal dismissed the case on Monday, borrowing from an unorthodox recent opinion of Supreme Court Justice Clarence Thomas.
U.S. District Judge Aileen Cannon said that Department of Justice special counsel Jack Smith was improperly appointed as the lead prosecutor on the investigation, countering the widely held opinion by legal scholars that the role was constitutional.
“Is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no,” Cannon wrote in her order on Monday.
Cannon’s surprise 93-page decision upends a more than 100-year-old practice of the Justice Department appointing prosecutors with some degree of independence in order to help maintain public confidence in politically sensitive investigations. Her decision threatens to topple what was seen as the strongest and simplest prosecution among the three that remain against the former president.
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It also means that the Supreme Court is likely to have the final word on the matter of how far the Justice Department can go in insulating sensitive investigations from political meddling. When the Supreme Court issued its landmark opinion granting Trump extensive immunity in his 2020 election interference case in Washington, Thomas issued a concurrence that called into question whether Smith had the legal authority to pursue the case. No other justice signed onto Thomas’ concurrence, though the matter was not briefed to the court by lawyers on either side during oral arguments.
Thomas’ nine-page concurrence claimed that Attorney General Merrick Garland incorrectly asserted the power to appoint Smith as a special counsel, given that Congress did not authorize the creation of a separate office within the executive branch. Although that question was not before the high court in the D.C. immunity case, the conservative justice seized the opportunity to complicate the documents case — throwing another bone to Trump in the process.
Trump’s defense team in the Mar-a-Lago case has tried to have the case dismissed on several grounds. Legal scholars largely considered the challenge to Smith’s appointment to be the oddest and least likely one to succeed.
Special counsels have been used since the 19th century, but not without controversy. Richard Nixon nearly sparked a constitutional crisis in 1973 when he fired the special prosecutor investigating the Watergate break-in. Like Smith today, that special prosecutor was appointed by the Justice Department and reported to the attorney general — meaning that Nixon could order the Justice Department to dismiss him.
As a result, Congress created a stronger, more independent position called an independent counsel, which was designed to better isolate special prosecutors from political interference. That law was upheld in a 7-1 Supreme Court decision. Though then-Justice Antonin Scalia argued that the idea of an independent prosecutor who did not report to the president was an unconstitutional usurpation of the prosecutorial power — an argument that became popular in conservative circles.
Due to concerns about the way that independent counsel Ken Starr conducted the Bill Clinton-era investigations, Congress let the independent counsel law lapse.
Since then, special counsels have conducted numerous politically explosive investigations, including an investigation into the leak of the name of a covert CIA officer during the Bush administration, a probe into Trump’s connections to Russia and the recently concluded investigation into Joe Biden’s handling of classified material.
In dismissing the classified documents case, Cannon has cemented her place in history as the federal judge most favorable to Trump in his push to avoid criminal prosecutions.
Trump appointed Cannon to the bench in his final year in office and saw her as an ally who could help him win legal fights — hence his desire to have her oversee his previous lawsuit against former political rival Hillary Clinton and his more recent challenges to the Mar-a-Lago case, according to two people briefed on his thinking who spoke to NOTUS on condition of anonymity.
In the Clinton matter, another federal judge in the South Florida district called out Trump’s attempts to game the system, noting how Trump’s legal team tried to file the lawsuit in the northernmost satellite courthouse in the region in what he saw as a blatant attempt to have the case assigned to Cannon. Trump and his lawyers celebrated when the classified documents case landed on Cannon’s desk, according to one person familiar with the situation.
In her opinion, Cannon made clear she saw the bureaucratic process that appointed Smith as a “dangerous” expansion of power, and she pointed to a 1952 Supreme Court opinion that stopped President Harry S. Truman from seizing control of many of the nation’s steel mills.
“The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority,” she wrote, quoting the case known as Youngstown.
Cannon said the AG could have appointed one of the nation’s 93 active U.S. attorneys to handle the case — or Congress, which is now partially under Republican control, could have created a separate office for Smith.
The current approach is “threatening the structural liberty inherent in the separation of powers,” she wrote.
Cannon also rejected past precedent, saying “the history reflects an ad hoc, inconsistent practice of naming prosecutors from both inside and outside of government,” arguing that “the lack of consistency makes it near impossible to draw any meaningful conclusions.”
She acknowledged that there has been an increase in the use of distinctive prosecutors, but she decided to draw a line at Smith’s appointment.
“While the past half century has shown an uptick in private-citizen special counsels, that practice is far from uniform,” she wrote.
Trump celebrated Cannon’s decision on Truth Social Monday, with a baseless attack on the “Democrat Justice Department,” which he accused of conspiring against him.
With the indictment now dismissed in its entirety, Smith and his prosecutors must decide whether to appeal to the mid-level federal court in Atlanta. The 11th Circuit Court of Appeals has twice reversed Cannon already.
However, Smith could use this as an opportunity to have the case reinstated — and have the appellate judges remove Cannon from the case permanently.
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Jose Pagliery and Byron Tau are reporters at NOTUS.
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