Federal Judge Aileen Cannon has dismissed the federal indictment against Donald Trump over his handling of classified documents. Many of these documents were marked Top Secret.
Judge Cannon ruled that the appointment of a special counsel by the attorney general is unconstitutional unless specifically authorized by law. However, this decision can be remedied by Attorney General Merrick Garland treating the case like any other crime, thereby directing a U.S. attorney to refile the case in federal court. This approach would circumvent any constitutional issues raised by Cannon.
Judge Cannon, appointed by Trump, has previously made rulings that seemed to favor him. She initially required a higher standard to justify a search warrant for a former president, a decision later reversed by the federal court of appeals, which stated that all individuals are subject to the same standards under the 4th Amendment.
Cannon asserted that it is unconstitutional for the attorney general to appoint and fund a special counsel. This contradicts U.S. Supreme Court precedents and other court rulings. The Supreme Court has previously stated that the attorney general can appoint “inferior officers” and finance their operations, as seen in the 1974 United States vs. Nixon case, which upheld the attorney general’s power to appoint a special prosecutor.
However, Cannon dismissed this as “dicta,” or non-binding statements, from the Supreme Court. She also ignored rulings from the U.S. Court of Appeals for the District of Columbia that upheld the attorney general’s authority to appoint and fund special counsels, such as during the Iran-Contra investigation and the Mueller investigation into Russian interference in the 2016 election.
Cannon’s ruling undermines the Justice Department’s ability to conduct independent prosecutions, free from political influence. After the Watergate scandal, Congress established special prosecutors to ensure independence from the attorney general. Though the Ethics in Government Act creating these special prosecutors lapsed, the current mechanism still allows for independent investigations by special counsels appointed by the attorney general.
To address Cannon’s ruling, special counsel Jack Smith could appeal to the United States Court of Appeals for the 11th Circuit, although this process could take months and might eventually reach the Supreme Court. The quickest solution is for Attorney General Garland to direct a U.S. attorney to refile the charges against Trump, thereby sidestepping the issues related to the special counsel’s appointment.