A Florida federal judge’s dismissal Monday of the criminal case accusing former President Trump of illegally keeping classified documents after leaving office did not come out of nowhere.
Two weeks ago, Justice Clarence Thomas called for halting the federal prosecutions against Trump on the grounds that the appointment of special prosecutor Jack Smith was unconstitutional.
“There are serious questions whether the Attorney General has violated that structure [of the Constitution] by creating an office of the Special Counsel that has not been established by law,” Thomas wrote earlier this month in a concurring opinion in the Trump vs. United States case about presidential immunity. “Those questions must be answered before this prosecution can proceed.”
Thomas spoke only for himself, but he gave voice to an argument that has gained traction on the right. The Supreme Court’s conservative majority is skeptical of Smith’s prosecution, so the justices may well agree his appointment is unconstitutional if the issue reaches the high court.
And it has now led U.S. District Judge Aileen Cannon in Florida to dismiss a case that accused Trump of mishandling classified documents.
The Supreme Court dealt a severe blow to the Justice Department’s prosecution of Trump when it ruled earlier this month that the former president — and all future and former presidents — have a broad immunity from criminal charges for official acts taken while in office.
The separate challenge to the special counsel’s appointment may unravel what’s left of the Trump prosecutions.
At issue is a problem that has no good solution in the Constitution.
The Justice Department, part of the executive branch, has the power to prosecute violations of the criminal law. But how does it proceed if the president may have violated the criminal laws?
Fifty years ago, when the Watergate scandal arose, President Nixon’s attorney general, Elliot Richardson, appointed Harvard law professor Archibald Cox as the special prosecutor. Cox led the Watergate investigation, which Nixon did not challenge, at least at first.
The Supreme Court cited that appointment with apparent approval in the 1974 Nixon tapes case. But Cannon noted in her ruling it was not part of the formal ruling.
After Watergate, Congress passed a new law to authorize a panel of judges to appoint independent counsels to look into allegations involving the president or his top advisors and appointees. The Supreme Court upheld that authority in 1988, over fierce dissent from the late Justice Antonin Scalia.
But that system was roundly condemned by Republicans and Democrats because it led to endless investigations involving presidents, including Ronald Reagan and Bill Clinton. Congress allowed the law to expire after Clinton left office.
When Trump became president, the Justice Department — much to Trump’s frustration — turned back to an earlier era and decided to appoint special counsels to pursue sensitive investigations.
Robert Mueller, a well-respected former FBI director, was appointed to investigate the alleged ties between Trump’s campaign and Russian interference in the 2016 election.
Two years after the Biden administration came to office, Atty. Gen. Merrick Garland appointed Jack Smith, a hard-charging prosecutor, to pursue criminal allegations against Trump.
Garland said he chose a special counsel because that person could act independently of the Justice Department, which was controlled by a Democratic president who was running for election against Trump.
But conservatives were not mollified by that argument. They pointed out that Smith was not a U.S. attorney confirmed by Congress, and he did not hold a top Justice Department post created by Congress.
Thomas highlighted those arguments.
“Whether the special counsel’s office was ‘established by Law’ is not a trifling technicality,” he wrote. “If Congress has not reached a consensus that a particular office should exist, the executive lacks the power to unilaterally create and then fill that office.”
Trump’s attorneys had cited Thomas’ opinion as grounds for dismissing the special counsel’s case in Florida.
In response, Smith described Thomas’ opinion as a “single-justice concurrence” that does not “bind this court” and ignores the history of judges allowing special prosecutors.
But in her opinion Monday, Judge Cannon described the special counsel as a private citizen who wielded the immense prosecution power of the U.S. government. Agreeing with Thomas, she said it was not an office created by Congress nor a position specifically authorized by law.
The special counsel can appeal her ruling to the conservative U.S. 11th Circuit Court of Appeals in Atlanta.
Trump’s lawyers are sure to cite it as well when U.S. District Judge Tanya Chutkan in Washington reconsiders what is left of the special counsel’s case charging the former president with conspiring to subvert the 2020 election.