President Biden and Merrick Garland violated the US Constitution when they appointed Jack Smith as special counsel to prosecute Donald Trump. That’s what federal judge Aileen Cannon ruled on Monday, July 15, before dismissing the case against Trump on charges he mishandled documents found at Mar-a-Lago. Cannon, a Trump appointee to the bench, said her ruling set out to “ensure compliance with the Constitution” and based her decision primarily on the charter’s Appointments Clause. The verdict explicitly restricts itself to the charges Smith filed in federal court in Florida.
Trump Wins Again
Donald Trump’s legal team has now defeated another attempt at criminalizing his behavior. It’s a massive win for the former president and his co-defendants. The decision was issued less than 48 hours after Trump so narrowly avoided an assassin’s bullet at a rally in Butler, PA, which he referenced in a social media post written in response to the ruling:
“As we move forward in Uniting our Nation after the horrific events on Saturday, this dismissal of the Lawless Indictment in Florida should be just the first step, followed quickly by the dismissal of ALL the Witch Hunts…”
The Republican nominee for president concluded by calling out the authors of his prosecutions, writing, “The Democrat Justice Department coordinated ALL of these Political Attacks, which are an Election Interference conspiracy against Joe Biden’s Political Opponent, ME.”
Appointments Clause For the Win
The Appointments Clause, found in Article 2, Section 2 of the Constitution, gives Congress great authority over who is appointed to exercise powers granted to the Executive branch. Here, to prosecute federal charges, one must be an “officer of the United States,” and those must be appointed with consent from the US Senate, as US Attorney positions and the Attorney General are, for instance. If not, then the appointment must be supported by some other law passed by Congress.
Judge Cannon wrote that it “is a critical constitutional restriction stemming from the separation of powers” and concluded, “None of the statutes cited as legal authority for the appointment gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith.” She invoked Alexander Hamilton and Federalist No. 78 – an essay supporting adoption of the Constitution which said it “carefully separates Congressional control of the ‘purse’ from Executive control of the ‘sword.’”
This argument against allowing Smith’s prosecutions to proceed was popularized by a friend of the court brief in Trump’s other federal criminal case, filed in Washington, DC. While that case was on appeal at the Supreme Court, former Attorneys General Ed Meese* and Michael Mukasey asked that Smith be declared ineligible to file the charges or conduct the prosecution for want of lawful authority. Justice Clarence Thomas discussed it at oral argument and later in his concurring opinion in Trump v. US, writing, “The Founders broke from the monarchial model by giving the President the power to fill offices (with the Senate’s approval), but not the power to create offices.”
Toning Down the Rhetoric
In response to Cannon’s 93-page ruling, former attorney general to Barack Obama, Eric Holder, said, “The dismissal of the docs case is so bereft of legal reasoning as to be utterly absurd. Has to be appealed and this incompetent judge removed." Early reports suggest that the Department of Justice has given Smith the go-ahead to appeal the ruling to the 11th Circuit. For Trump, however, who has claimed since the outset that the charges were designed to punish and frustrate his political ambitions, the victory is complete. There will be no criminal trial or verdict on this case before the November elections.
* Edwin Meese currently serves on the board of the nonprofit that publishes Liberty Nation.
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