Judge tosses Trump classified documents case, rules prosecutor appointment unconstitutional

A Florida federal judge dismissed the criminal case against former President Donald Trump over his handling of classified documents, writing that the appointment of special counsel Jack Smith in the case was unlawful.

Smith was appointed by U.S. Attorney General Merrick Garland. The recent prosecution of President Joe Biden's son, Hunter Biden, was also backed by a special counsel, a role providing greater independence from Justice Department oversight. Hunter Biden was convicted of lying about drug use when he purchased a gun.

U.S. District Judge Aileen Cannon, who was nominated to the federal bench by Trump, agreed with the former president's argument that Smith's appointment in the case violated a constitutional provision requiring “Officers of the United States” to be appointed by the president and confirmed by the Senate.

As has been done with previous special prosecutors, Garland appointed Smith without seeking Senate approval for that action.

"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.

Trump calls ruling 'first step' after assassination attempt

Trump posted on Truth Social shortly after the ruling that the case's dismissal "should be just the first step" in moving forward after the assassination attempt against him at a political rally on Saturday.

Trump added that the dismissal of the other cases against him should come next.

"Let us come together to END all Weaponization of our Justice System, and Make America Great Again!" he posted.

Trump was charged with mishandling classified documents, including by willfully retaining national defense information after his presidency. Those documents allegedly included information on U.S. and foreign military capabilities.

Justice Department authorizes appeal

Peter Carr, a spokesperson for Smith's office, said in a statement to USA TODAY that the Justice Department has authorized Smith to appeal Cannon's ruling.

“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," Carr said.

The ruling, if adopted in other cases, could jeopardize multiple Justice Department prosecutions, including Trump's federal election interference case and an upcoming trial against Hunter Biden on tax charges.

Both Democratic and Republican administrations have appointed special counsels as well as independent counsels (a precursor to special counsels) to oversee investigations with greater independence and avoid the appearance of a conflict-of-interest in politically sensitive investigations. Those appointments have been been consistently upheld in court.

Asking for Cannon to be removed from case?

Some legal experts suggested Smith might not only appeal the ruling, but also ask for Cannon to be taken off the case going forward.

Cannon has made a series of rulings that some outside observers have said contravened the law in Trump-favorable ways. For instance, Cannon temporarily blocked investigators from reviewing seized documents, only to be reversed by a panel of three Republican-appointed appellate judges in a sharply worded decision.

"This ruling (which is wrong six ways from Sunday) can (and will) be immediately appealed to the Eleventh Circuit," wrote Georgetown law professor Stephen Vladeck on X (formerly Twitter), referring to the appellate circuit court that sits above Cannon.

"To me, the only question is whether the Special Counsel also asks for the case to be reassigned" to a different judge, Vladeck said.

"Dismissal of Trump documents case may actually be good news for Jack Smith, who can now immediately appeal to 11th Circuit and ask for case to be reassigned to a new judge," commented Barbara McQuade, a former U.S. attorney, on X.

University of Minnesota law professor Ilan Wurman, however, pushed back on some of the criticism. He posted on X that there isn't any law that "obviously suggests" Congress has vested the attorney general with the power to appoint Smith.

"Judge Cannon's ruling isn't crazy, and it might even be right," Wurman said.

An invitation from Justice Clarence Thomas?

Supreme Court Justice Clarence Thomas appeared to recently invite lower court judges to scrutinize Smith's authority.

Thomas joined his fellow Republican-appointed justices in ruling on July 1 that Trump has presidential immunity for actions within his core constitutional powers and that Trump is also at least presumptively immune for all his official acts. That ruling came in Trump's federal election interference case, which is also being prosecuted by Smith.

But Thomas also wrote a separate concurrence that questioned Smith's appointment.

"In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States," Thomas wrote. "But, I am not sure that any office for the Special Counsel has been 'established by Law,' as the Constitution requires."

Cannon cited Thomas' concurrence multiple times in her Monday ruling.

Cannon writes that special counsel 'usurps' authority

Cannon wrote that the special counsel can be appointed and confirmed through an appointments process described in the Constitution, or Congress can authorize the special counsel's appointment by enacting a statute consistent with that constitutional provision.

"The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers," Cannon wrote.

"The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers," according to Cannon.

Cannon said she could see no alternative to dismissing the indictment in order "to cure the unconstitutional problem."

Cannon also ruled that Congress hasn't authorized Smith's funding. She said she didn't need to figure out what that, on its own, would mean for the case, given she was already dismissing it based on the appointment issue.

This article originally appeared on USA TODAY: Trump documents case dismissed, prosecutor appointment ruled unlawful