[Order David Horowitz’s new book, America Betrayed, HERE.]       

On July 15th, U.S. District Court Judge Aileen Cannon dismissed the classified documents case brought against former President Donald Trump by Special Counsel Jack Smith. Mr. Smith had charged that Mr. Trump illegally took and retained classified documents after leaving office and then allegedly obstructed the government’s efforts to retrieve them.

Explaining her reasoning in a cogent 93-page opinion, Judge Cannon threw out the case because Mr. Smith’s appointment to investigate and prosecute Mr. Trump lacked proper constitutional and statutory authority. Attorney General Merrick Garland took it upon himself to appoint a lawyer to such a high-level position from outside the government, much less one who was already confirmed by the Senate such as a U.S. Attorney. This action by an officer of the executive branch “effectively usurps” Congress’ “important legislative authority,” thereby giving rise to a “substantial separation-of-powers violation” that Judge Cannon concluded required dismissal of the case.

Smith’s office also used “substantial funds drawn from the Treasury without statutory authorization.”  Judge Cannon left open the possibility that the Department of Justice “could reallocate funds to finance the continued operation of Special Counsel Smith’s office,” which would allow the Department to try again with a newly refiled case. But that would not solve the more fundamental problem that Mr. Smith’s continued service as special counsel for the case violates the Constitution’s Appointments Clause, which provides the exclusive means for appointing “Officers of the United States.” (Article II, § 2, cl. 2.) Unless this infirmity is rectified by appointing someone else such as a U.S. Attorney, who has already been confirmed by the Senate, to replace Mr. Smith, that constitutional problem will not go away.

“Because Special Counsel Smith’s exercise of prosecutorial power has not been authorized by law, the Court sees no way forward aside from dismissal of the Superseding Indictment,” Judge Cannon ruled. “And the Special Counsel does not propose an alternative course.”

Judge Cannon’s ruling sparked outrage in Democrat and left-wing media circles. Instead of engaging with Judge Cannon’s opinion on its merits with well-reasoned opposing arguments, the Trump-haters resorted to personal attacks against the judge, a Trump appointee, accusing her of pro-Trump bias and incompetence. Senate Majority Leader Chuck Schumer, for example, said in a statement: “This breathtakingly misguided ruling flies in the face of long-accepted practice and repetitive judicial precedence. It is wrong on the law and must be appealed immediately. This is further evidence that Judge Cannon cannot handle this case impartially and must be reassigned.”

Judge Cannon’s reasoning is unassailable if one takes the text of the Constitution seriously. The Appointments Clause’s text reflected, in her words, “the Framers’ desire to limit executive aggrandizement by requiring shared legislative and executive participation in the area of appointments.” She added that the Appointments Clause “is rooted in the separation of powers fundamental to our system of government and to the limitations built into that structure—all of which aim to prevent one branch from aggrandizing itself at the expense of another.”

The Appointments Clause sets as a default rule that all “Officers of the United States”—whether “inferior” or “principal”—must be appointed by the President and confirmed by the Senate. However, the clause permits a delegation of this appointment power pursuant to statute. It states that “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 Heads of Departments.”

Judge Cannon explained that the Appointments Clause is “a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers.”

Attorney General Merrick Garland attempted to end run “this critical constitutional restriction” by appointing Jack Smith as special counsel without explicit congressional authority.

The Senate did not confirm Jack Smith’s appointment. Nor did Judge Cannon find any statute in the United States Code that clearly authorizes the Attorney General to appoint Mr. Smith as special counsel to conduct the prosecution of Donald Trump in the case before her. The now-expired Independent Counsel Act had given the Attorney General some authority in this regard. It authorized the Attorney General to request that a three-judge panel appoint an “independent counsel” to “fully investigate and prosecute” violations of federal criminal law by certain categories of executive persons, including presidents and former presidents for a year after leaving office. But even that authority disappeared when the Independent Counsel Act expired, and no comparable statute has taken its place.

In this case, Attorney General Garland exceeded even what the Independent Counsel Act would have permitted him to do if it were still in force. He went rogue and unilaterally appointed Jack Smith, whose powers are exceedingly broad. “Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision,” Judge Cannon wrote.

“None of the statutes cited as legal authority for the appointment…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,” Judge Cannon added. “If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history…or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.”

Neither happened in this case.

Judge Cannon did not consider passing remarks by courts in prior cases that assumed there was statutory authority for the Attorney General’s appointment of a special prosecutor or special counsel to be dispositive as binding precedent. The courts in those cases, going back to a Supreme Court decision during the Watergate investigation a half century ago, did not specifically analyze the text of the cited statutes to determine whether there was an adequate statutory predicate for each such appointment.

Justice Clarence Thomas set the stage for Judge Cannon’s ruling in his incisive opinion concurring with the Supreme Court’s July 1^st presidential immunity decision. “A private citizen cannot criminally prosecute anyone, let alone a former President,” Justice Thomas wrote. “It is difficult to see how the Special Counsel has an office ‘established by Law,’ as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have…Instead, the Attorney General relied upon several statutes of a general nature.

The Justice Department has announced that it will appeal Judge Cannon’s decision. A federal appeals court previously overturned another ruling by Judge Cannon in which she had appointed a special master to determine which documents, if any, seized from Mar-a-Lago should be shielded from criminal investigators. The Trump-haters are hoping that the Court of Appeals will come through for them again.

However, even if Judge Cannon’s latest ruling dismissing the classified documents case is reversed at the appellate court level, the Supreme Court may well view her ruling more favorably and uphold it. That is because Judge Cannon’s analysis is consistent with recent Supreme Court decisions that have placed constraints on executive actions with major impact that lack clearly expressed statutory authority.

Judge Cannon’s decision dismissing Jack Smith’s classified documents case is a victory for the cardinal constitutional principle of the separation of powers.