For the first time in U.S. history, a federal judge has ruled the appointment of a special prosecutor unconstitutional, dismissing one of former President Donald Trump’s most serious criminal cases and potentially shaking a long-standing judicial practice.
U.S. District Judge Aileen Cannon ruled that Attorney General Merrick Garland lacked the authority to appoint Jack Smith as a special counsel to investigate Trump’s alleged crimes. This decision temporarily halts Trump’s prosecution for retaining classified documents post-presidency and paves the way for another constitutional battle following a recent immunity decision.
Smith’s spokesman, Peter Carr, known for his reticence, issued a critical statement against Judge Cannon, noting the deviation from previous judicial conclusions that validated the Attorney General’s authority to appoint a special counsel, adding that the Justice Department intends to appeal the decision.
Prosecutor James Pearce had outlined the historical precedence of special prosecutors, a practice dating back to President Ulysses S. Grant and endorsed by the Supreme Court during the Nixon tapes case. Despite this history, Cannon found that Smith’s appointment violated the Appointments Clause of the Constitution, pointing out that the statutes used by the Department of Justice since 1999 do not authorize Smith’s position.
Cannon further suggested that Smith might qualify as a “principal” officer, which would necessitate Senate approval according to the Appointments Clause, although she refrained from a definitive ruling on this point.
Other defendants, including Trump’s former campaign manager Paul Manafort and Roger Stone’s associate Andrew Miller, had unsuccessfully challenged special prosecutors’ legality. These cases, however, were largely decided outside of Cannon’s jurisdiction, making her ruling particularly significant.
To distinguish her ruling from existing Supreme Court precedents, Cannon noted that former President Richard Nixon did not dispute the authority of the special prosecutor in 1974, dismissing this as non-binding dictum. Cannon rejected citations of the 1988 case Morrison v. Olson supporting special prosecutors, arguing that the statutes in question had expired, thus not applicable.
Trump’s allies have long contended against the authority of special prosecutors, previously to no avail. Special Counsel Robert Mueller successfully defended his appointment against challenges from Manafort, Miller, and Concord Management. However, Cannon dismissed these precedents, leaning instead on a concurring opinion by Justice Clarence Thomas questioning the constitutionality of Smith’s appointment.
Attorney Matthew Seligman, who represented constitutional law professors opposing Trump, expects a swift appeal following Cannon’s decision, which he described as unmoored from precedent. Some analysts have suggested prosecutors might seek reassignment of the case due to perceived pro-Trump bias by Cannon.
Following the FBI’s search of Mar-a-Lago and subsequent rulings, including those reversed by the 11th Circuit, some analysts speculated on whether Smith would seek Cannon’s removal from the case, a decision that this ruling could influence.
Attorney Josh Blackman praised Cannon’s opinion as careful and thoughtful. Smith may appeal the dismissal to the 11th Circuit or attempt a direct appeal to the Supreme Court. This decision has broad implications, potentially affecting other key Justice Department appointments and making it challenging to appoint independent special counsels in the future.
If Cannon’s ruling stands, it could combine with the Supreme Court’s immunity decision to make criminal accountability for current and former presidents even more elusive, complicating the appointment of independent counsels to investigate presidential administrations.
IMAGE: The Alto Lee Adams Sr. United States Courthouse, where U.S. District Judge Aileen Cannon held a hearing on May 22, 2024, in Fort Pierce, Florida. (Photo by Joe Raedle via Getty Images)