Trump documents case DISMISSED

The “second” case of U.S. v. Trump, the “documents case,” is now dismissed. Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida (Miami Division) has consistently denied several motions by Donald J. Trump’s legal team to dismiss the case – until now. Now she would appear to have found solid grounds to dismiss the case, grounds that had eluded her before. Her latest action has provoked speculation of a Supreme Court appointment in her future – and also hyperbolic decrying of her action as a miscarriage of justice.

Essence of the Trump documents case

The case of United States v. Donald J. Trump, Waltine Nauta Carlos de Oliveira, et al. (9:23-cr-80101) arose out of Trump’s decision, on January 20, 2021, to spirit out of the White House as much documentary evidence as he could lay hands on, of the extent, activities, and key nodes of the Deep State. At least, such is the best explanation for his decision. Other Presidents before him have retained “classified” documents, but never so many – or so sensitive. This material is so sensitive that the FBI laid on a raid on Trump’s Mar-A-Lago estate to get it back. (The FBI might also have laid a deadly trap for Trump by couching their warrant in terms allowing deadly force. Those who still doubt that the FBI so intended, should reconsider those doubts in light of the assassination attempt on Trump on July 13, 2024.)

None of that seems to matter anymore – because yesterday Judge Cannon granted a motion to dismiss the case. The grounds weren’t the President’s inherent authority to classify or declassify documents on his say-so alone. Nor were they his prerogatives under the Presidential Records Act. Nor, strictly speaking, was it the opinion in the other case – the January 6 Case – setting forth the parameters of Presidential immunity from prosecution after his term of office is finished.

It was, rather, a concurrence in that case by Justice Clarence Thomas, suggesting that Special Counsel Jack Smith had no legal authority to prosecute anyone for anything.

What Clarence Thomas said

In his nine-page concurrence in the opinion, Justice Thomas decried what he called

another way in which this prosecution may violate our constitutional structure. 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. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure.

Thomas didn’t officially “find” Jack Smith’s appointment unconstitutional – but he seemed to chide Judge Tanya S. Chutkan, who has the “January 6 case” before her, for not examining that vital question herself before letting that case proceed at all. That’s because:

If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.

Thomas’ objection is twofold. First, Congress creates offices, and Presidents fill them, usually with Senate advice and consent.

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.
Article II Section 1 Clause 2

Here the Constitution establishes a limited number of already existing offices: foreign officers, Supreme Court Justices, and “Heads of Departments.” Congress must create any other office for the President to fill. The problem, as Thomas sees it, is that no current enabling statute for Office of Special Counsel currently exists. How, then, could the President, or the Attorney General, appoint anyone to such an office?

And even so, Thomas went on, who has the authority to make any appointments?

[T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.

But if Congress didn’t even create the office, how could it vest the filling of that office in either the President or the Attorney General? Simply put, it couldn’t, couldn’t have, and didn’t. Every previous Special Counsel authorizing statute has lapsed, and no lower court has found that Congress renewed the last statute. Attorney General Merrick Garland cited a few statutes – but as Thomas saw it, not anything that created Special Counsel.

Thomas ended:

[T]here are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed.

And who must answer them? A trial-level court. Which is what Judge Cannon, on a motion-to-dismiss from Team Trump, set out to do.

Judge Cannon’s opinion

A motion-to-dismiss on the basis of unlawful appointment was already before the Court, as Document No. 326. It does not appear on the CourtListener docket listing, but Team Trump definitely filed it on February 22, 2024. Yesterday Judge Cannon dropped a 93-page opinion into the case file, granting that motion-to-dismiss.

She found two grounds to dismiss the “superseding indictment”:

1. Attorney General Garland appointed Smith in violation of the Appointments Clause, and:
2. Smith’s use of a “permanent indefinite appropriation” to fund his office violates the Appropriations Clause.

In regard to that last, Article I Section 9 Clause 7 clearly states:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

In treating the Appropriations Clause, Judge Cannon went beyond Justice Thomas’ concurrence. Besides, she sought to build an iron-clad, irreversible argument for dismissing the case. Leftists, especially Democrats in Congress, had repeatedly accused her of partiality to the defense. So, in 93 pages, Judge Cannon sought to cut all arguments short.

She took cognizance of another matter: the Appointments and Appropriations challenges were “matters of first impression” in the Eleventh Circuit. The Legal Information Institute at Cornell Law School defines first impression as:

a new legal issue or interpretation that is brought before a court. In a case of first impression, the exact issue before the court has not been addressed by that court, or within that court’s jurisdiction, thus there is no binding authority on that matter. In Fiore v. White, 562 Pa. 634, it was held that “a case of first impression is one that presents an ‘entirely novel question of law’, which ‘cannot be governed by any existing precedent’”.

In other words, nothing like this had ever before come up in the Eleventh Circuit. That’s probably true of all Judicial Circuits. So Judge Cannon knew she was making brand-new case law. Cases like these can make or break judicial careers. In fact she started work in February, and heard argument before Justice Thomas’ concurrence became available.

The Appointments Clause

The Supreme Court is not a trier or finder of fact, and neither are Courts of Appeal for Judicial Circuits. Trial courts find fact. Judge Cannon correctly identifies the central issue:

[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. None of the statutes cited as legal authority for the appointment—28 U.S.C. §§ 509, 510, 515, 533—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. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise.

In other words, Congress did not vest the appointment of any officer like Smith in the Attorney General. At best, Jack Smith is acting like just another United States Attorney, though not for a specific District. So he needed to appear before the Senate, or Congress needed to authorize his appointment ahead of time. Neither thing happened.

Chapter 35 of Title 28 of the United States Code governs the appointment and funding of United States Attorneys. All United States Attorneys require Senate confirmation of their appointments. This Chapter authorizes the Attorney General to appoint assistant United States Attorneys without Senate involvement. But Jack Smith does not claim to be anyone’s assistant.

Indeed, Jack Smith has the rank of a United States Attorney – and no statute lets the Attorney General appoint him without going to the Senate. The four statutes Garland cited in his appointment order do not suffice. In particular, 28 U.S.C. Section 515(b) does not authorize the appointment of a Special Counsel as a Special Attorney. And the law does not take into account the apparently ill-considered opinion of the Attorney General. (In fact, Special Attorneys have received their appointments from the President and not from the Attorney General.)

Applicability of United States v. Nixon

The Special Counsel’s office makes much of United States v. Nixon, the first application of Special or Independent Counsels in the popular imagination. In fact, Special Counsels go back to Warren Harding’s Teapot Dome scandal. But no one is suggesting that Jack Smith’s authority derives from a Teapot Dome-era law. The reason is simple: all such laws from that period have expired.

Concerning the Nixon precedent, Judge Cannon finds it weak for one reason above all: no one challenged it. One wonders how different history would have been, had President Nixon challenged the validity of the Office of Special Prosecutor. Nixon didn’t do that. He merely fired the first such Special Prosecutor (Archibald Cox) and tolerated the second (Leon Jaworski). In contrast, Trump has challenged the validity of the Office of Special Counsel. He can do nothing else; Merrick Garland appointed Smith in 2022.

One other debate remained: whether a Special Counsel is a principal officer or an inferior officer. Presidents appoint principal officers, with Senate confirmation, and Congress may not waive that. But Congress may waive Senate involvement in the appointment of inferior officers. Cannon found doubt on the issue, and gave Smith the benefit of that doubt, as federal rules require. Nevertheless, she found no current waiver of Senate involvement in the appointment of Special Counsel like Smith.

In the absence of any statutory authority for Smith’s appointment, Cannon found only one thing to do. On that ground, she dismissed the indictment.

The Appropriations Clause

The Appropriations Clause issue is, if anything, more dire. As Judge Cannon shows, Jack Smith assured himself of an unlimited budget. That applied to Independent Counsels, appointed under the Independent Counsel Reauthorization Act of 1987. To begin with, that Act might have been unconstitutional on its face. Second, it expired on June 30, 1999 – so it remains untested and, besides, is no longer in force or effect. For that reason, the unlimited budget for which it provides is not available to Smith or anyone like him. (Trump didn’t challenge the idea of an unlimited budget for this kind of prosecution, so Cannon didn’t question it. But Cannon did wonder – in writing – whether the unlimited budget itself would survive such a challenge.)

In any case, because Congress never authorized Smith’s appointment, it never authorized him to draw public funds, either.

Judge Cannon’s orders were brutally simple: motion granted, indictment dismissed, case closed, pending motions denied as moot, all deadlines terminated.1

Trump wins – for how long?

Jack Smith announced his intention to appeal, and the Justice Department’s authorization to him to do so. Thus far no Notice of Appeal has appeared on the case docket at time of writing.

Any appeal will go to the Court of Appeals for the Eleventh Judicial Circuit, which includes Florida. Judge Cannon has seen that court reverse some of the rulings. That explains further why she waited so long to dismiss this case. She wanted to cut all arguments short, and present an incontrovertible, irreversible memorandum order.

The Hill published a defiant statement from Peter Carr, spokesman for Smith, to this effect:

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.

That flatly contradicts Judge Cannon’s finding that the Special Counsel matter is one of first impression. Furthermore, maybe the Eleventh Circuit has no problem with Smith’s appointment, but the U.S. Supreme Court might. Recall that Clarence Thomas wrote his concurrence after Judge Cannon had already heard argument on this matter. So she was planning to dismiss the case all along. Thomas surely aimed his concurrence at Judge Chutkan, not Judge Cannon. Very likely two cases will be back before the Supreme Court on the Appointments and Appropriations Clause issues.

Trump bids fair to surge to reelection. He took a literal bullet and lived to tell the tale, and that will resonate with voters. In any event, this matter cannot come to any kind of trial before the election.