A right-wing judge just threw out a case against Trump in a brazen abuse of power

A federal judge in Florida on Monday threw out the criminal case focused on how former President Donald Trump handled classified documents at his Mar-a-Lago estate, ruling that the appointment of the prosecutor in the case, Special Counsel Jack Smith, violated the Constitution.

It is a huge setback for prosecutors in a case that had already suffered repeated delays, making a verdict even before today’s ruling unlikely to come before the November election, and delivering a big win to Trump at the start of this week’s Republican National Convention. But it’s hardly a surprise given the repeated rulings in favor of Trump given by US District Judge Aileen Cannon, a Trump appointee who has been accused of partisan bias in favor of the GOP and the former president. Prosecutors are expected to appeal the ruling and potentially ask that the case be reassigned to a different federal judge.

After the ruling, Trump called for the dismissal of other pending cases against him as well.

“Let us come together to END all Weaponization of our Justice System, and Make America Great Again!” he wrote on his social platform, TruthSocial.

In her ruling, Cannon argued that because Smith had not been appointed a special counsel by the president and confirmed by the Senate, his appointment violated the Constitution’s Appointments Clause.

Smith, a longtime government prosecutor, was made a Special Counsel by US Attorney General Merrick Garland in November 2022 to oversee the classified documents case. Trump pleaded not guilty to all 37 counts in the indictment Smith and his team eventually filed, including willful retention of national defense information under the Espionage Act and one count of false statements and representations.

Smith was also appointed as special counsel in the investigation into the January 6, 2021, insurrection at the US Capitol. Smith later charged Trump with four counts, including conspiracy to defraud the United States. That case is ongoing, but after the US Supreme Court ruled earlier this month that the president has broad immunity from criminal prosecution for official acts performed in office, it’s an open question whether he can be prosecuted for his actions related to the insurrection.

Cannon’s ruling, which relies on a stringent reading of the Constitution and represents a brazen break with precedent, has come under heavy criticism from legal scholars. Under her ruling, the appointment of prior special counsels would have also come into question, from Archibald Cox, who investigated the Watergate scandal that led to President Richard Nixon’s resignation, to Robert Mueller, who investigated Russian interference in the 2016 election.

“It’s breathtaking audacity for a trial judge who has clearly shown that she wants to delay and, if possible, get rid of this case,” said Jed Shugerman, a Fordham Law professor and the author of The People’s Courts.

Cannon writes in her opinion that the Constitution allows Congress, by law, to vest department heads — which would include Garland as the head of the Justice Department — with the power to appoint “inferior officers” such as a special counsel. But she ruled that Congress has not accepted that power, as it has passed no such law governing inferior officer selection, something that Supreme Court Justice Clarence Thomas had previously argued in his concurrence in the Trump immunity case.

“[I]s 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 writes.

Cannon also ruled that, because Smith’s appointment was unconstitutional, he was not authorized to use permanent indefinite appropriations (appropriations that Congress does not authorize annually) to fund his office and conduct his investigation — meaning that he also violated the Appropriations Clause of the Constitution.

This ruling goes against longstanding appeals court rulings, including by the DC Circuit, the most prestigious court after the Supreme Court and one that specializes in legal questions concerning constitutional and administrative law issues.

Notably, the same question about the legality of special prosecutors was raised before the DC Circuit in a 2019 case focused on Robert Mueller. Drawing on precedent from a related case against President Richard Nixon, the court found that “binding precedent establishes that Congress has ‘by law’ vested authority in the Attorney General to appoint the Special Counsel as an inferior officer.”

To Shugerman, Judge Cannon is essentially saying, “I’m not bound by the DC Circuit, and I think they misinterpret this.” That, he added, shows an “astonishing level of dismissiveness.”

Shugerman said that prosecutors have grounds to appeal and can ask that the case be sent back to a lower court — and importantly, be reassigned to a different judge.

The 11th Circuit appeals court has admonished Cannon before in this case for ordering the appointment of a special master to supervise the review of classified documents found at Mar-a-Lago, which further slowed down the prosecution.

“So there was already a first strike and maybe even a second strike that preceded this,” Shugerman said. “It lends more power to an appeal.”

But the damage to the case may be irreversible. The appeals process will further delay any potential trial, almost surely past the election in November.

At this point, the outcome will be decided not by the courts but in November’s election. If Trump wins, he will likely direct his Justice Department to scuttle the case against him, and it’s not clear whether, due to the differing statutes of limitations for the various charges, any future administration could revive it.