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In a somewhat surprising move, this morning District Judge Aileen Cannon dismissed the classified documents case Jack Smith brought against former President Donald Trump. The basis for the dismissal was that Independent Counsel Jack Smith was illegally appointed. Legal analysts had considered this a possibility after Judge Cannon opted to hold an amicus (friend of the court) briefing on the topic a few weeks ago.
Some conservative legal scholars and commentators have held that Independent Councils, like Smith, can only be appointed by the Senate. However, this has been litigated a number of times in Federal Court, one of the last times being over the appointment of Robert Mueller, and the appointments have been upheld. For more details on this debate, see this primer from FactCheck.org, which does a good job of laying out both positions.
So what does this mean for Smith’s prosecution? I expect that within the next 48 hours, we’ll see an appeal to the 11th Circuit Court of Appeals. Given how outside of normal precedent this ruling is, and the Circuit’s past rulings on Cannon’s actions, I expect they will probably overturn this decision. However, that could easily take months. It’s highly probable the ruling might not come before the election.
What happens after that is anyone’s guess. The case may be appealed to the Supreme Court–especially if the ruling is against Trump. However, depending on timing, it’s also possible that the Justice Department ultimately opts to drop the prosecution if Trump is elected in the fall.
Given the recent immunity decision and other precedent overturning Supreme Court decisions, there is no telling how the current Supreme Court would rule on this. Justice Thomas definitely agrees with the conservative legal theory—Cannon cites his writings in her decision. Justice Alito will most likely support it. I feel like the rest of the conservatives on the court could go either way.
The only thing we can be sure of is that this will not be resolved before the election.
Random additional bits and bobs on the topic:
1. Matt’s speculation: This decision might have been a convenient off-ramp for Justice Cannon. With this ruling, she ensures that this will drag on past the election and takes herself off the case without having to recuse herself. To be clear this is rampant speculation on my part, but I have to think that she’s more than willing to be overturned at the Circuit level to get this headache off her plate (especially if she believes that Trump will win the election).
2. Jack Smith does have other options. Lawyer and commentator Amee Vanderpool lays a number of them out in this tweet:
3. As noted in another thread, we are already starting to see cracks in Trump’s latest attempt to strike a unifying tone:
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 January 6th Hoax in Washington, D.C., the Manhattan D.A.’s Zombie Case, the New York A.G. Scam, Fake Claims about a woman I never met (a decades old photo in a line with her then husband does not count), and the Georgia “Perfect” Phone Call charges. The Democrat Justice Department coordinated ALL of these Political Attacks, which are an Election Interference conspiracy against Joe Biden’s Political Opponent, ME. Let us come together to END all Weaponization of our Justice System, and Make America Great Again!
Donald Trump Truth Social 10:41 AM EST 07/15/24
https://x.com/TrumpDailyPosts/status/1812860687796117535
I guess it’s an improvement that he didn’t directly blame Joe Biden for the prosecutions (as he has in the past). That said, give it time, especially as it becomes increasingly clear that folks are unwilling to fall in line behind his specific definition of unity (i.e. supporting me).
4. Also, if you are someone who supports the line of reasoning that the Independent Counsel was improperly appointed, note that for consistency’s sake, Hunter Biden’s conviction and pending case may need to be thrown out, too. The special counsel in that investigation was appointed in exactly the same way as Smith or Mueller. Admittedly, Wiess is a Senate-approved prosecutor. However, Cannon’s legal reasoning seems to suggest that there still needs to be Senate approval to elevate him to an Independent Counsel.
