Donald Trump.
Credit: Reuters Photo
Perhaps it’s just a coincidence that US District Court Judge Aileen Cannon dismissed a criminal case charging former President Donald Trump with misappropriating classified information on the first day of the Republican National Convention.
Perhaps it’s a coincidence that, rather than dismissing the case when it first landed in her courtroom in 2022, Cannon may have discovered the legal reasoning to do so only after Supreme Court Justice Clarence Thomas laid the groundwork for her in an opinion published two weeks ago.
And perhaps it’s a coincidence that Cannon, who Trump appointed to the federal bench, has slow-walked the case since it landed on her desk — giving Trump and his lawyers ample latitude to delay the proceedings until a second presidential term might grant him the authority to bury it entirely.
Still, those are a lot of coincidences.
Coincidences aside, the documents case against Trump was built on a damning body of evidence, including surveillance footage from Trump’s own security cameras at his Mar-a-Lago residence in Palm Beach, Florida. Trump allegedly stashed classified filings in piles of boxes there — in a ballroom and a bathroom, among other places — including some related to nuclear weapons programs. He possibly violated the Espionage Act along the way. For good measure, he may have also lied to federal officials about the documents and thereby obstructed justice.
Among the many prosecutions engulfing the former president, the documents case appeared singularly airtight and relatively easy to explain to a jury. It also largely involves Trump’s post-presidential conduct and wouldn’t enjoy the legal insulation afforded by the recent Supreme Court decision expanding presidential immunity from criminal prosecutions. Now, poof.
It’s another milestone showing how deeply the rule of law has been toyed with — and undermined — following Trump’s rise to political power.
Cannon argued in her ruling that Special Counsel Jack Smith, who has been prosecuting the documents case, was inappropriately appointed by the Justice Department and Attorney General Merrick Garland. Special counsels require congressional approval, she claimed.
“Smith’s appointment violates the Appointments Clause of the United States Constitution,” she wrote. “Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause … but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds.”
In her ruling, Cannon also cited Thomas’ unusual concurrence in the immunity case. “If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote in his concurrence, citing Smith’s appointment. “A private citizen cannot criminally prosecute anyone, let alone a former president.”
Thomas said such appointments violate the Appointments Clause, opening a door that Cannon has subsequently walked through. Cannon certainly could have been forging her own ruling well before Thomas wrote his, and he may have had no influence over how she thought about the documents case. It strains the imagination, however.
Thomas’ reasoning raises questions about who should guide federal prosecutions — law enforcement officials or members of Congress. The justice’s logic might have had more authority and persuasiveness if he had also noted the appointments of two other special counsels: Robert Hur, who oversaw a classified documents case involving President Joe Biden, and David Weiss, who’s handling Hunter Biden’s gun possession case. But he didn’t mention them.
For her part, Cannon pointed out in her ruling that the “effect of this Order is confined to this proceeding.” That’s an odd little addendum for her to make. I’m not a legal scholar, but I can’t help wondering if she wanted to make sure she wasn’t offering legal fodder for critics of Hur’s and Weiss’ appointments. Maybe it’s just another coincidence.
The Justice Department has historically used special counsels to avoid the appearance of political conflicts of interest. Garland, for example, was appointed by a Democratic president and his team was prosecuting a Republican candidate. Smith’s appointment was meant to remove Garland’s own judgment from the mix.
Thomas and Cannon would substitute the judgment of Congress in such matters, suggesting they have faith that politicians won’t politicize prosecutions involving other politicians. Congress has never been particularly circumspect about settling political scores and the idea that its members would exercise such new powers responsibly is risible.
The Justice Department will undoubtedly appeal Cannon’s ruling, which offers Smith an opportunity to finally have her removed from a case she has overseen with an abundance of procedural amateurism and intellectual hackery. Perhaps that will ultimately be a bright spot for prosecutors.
But that assumes law enforcement can actually get its case across the finish line. If Trump gets re-elected in November, he’ll get to appoint his own attorney general. The odds are excellent that Trump will then have Smith removed from the case or force the Justice Department to drop it.
There are rules. There’s the rule of law. And then there’s Trumplandia. Take your pick, because however you lean will fashion the future and the success of the American experiment.