Judge Cannon Tosses Docs Case: Trump off the Hook Pending S/C Smith Powerful Appeal

 

Head-to-Head in Dismissed FL Case Pending Appeal

Below is the decision by Judge Cannon in FL re: the classified docs case against Trump reported on from The AP via Market Watch site with this their headline:

“Trump classified-documents case in Florida dismissed by Judge Aileen Cannon”

Appeal by special counsel Jack Smith viewed as inevitable - see more below.

WASHINGTON — The federal judge presiding over the classified documents case of former President Donald Trump in Florida has dismissed the prosecution because of concerns over the appointment of the prosecutor who brought the case.

U.S. District Judge Aileen Cannon granted the defense motion to dismiss the case on Monday, voiding a prosecution that at the time it was brought was seen as the most perilous of the multiple legal threats Trump faced.

Lawyers for Trump had argued that special counsel Jack Smith was illicitly appointed in violation of the Constitution’s Appointments Clause that his office was improperly funded by the DOJ.

Smith’s team had vigorously contested the argument during hearings before Cannon, appointed in 2020 to the federal bench by Trump, last month.

A spokesman for the Smith team did not immediately return a request seeking comment, and the Trump team did not immediately have a comment. An appeal of Smith’s appointment in 2020 to the federal bench by the Trump defense is viewed as likely by legal observers.

Breaking News on the above Judge Cannon case dismissal ruling just reported on this way from FOX News with this their headline:

“Special counsel Jack Smith to appeal Trump classified documents case”

Following U.S. District Judge Aileen Cannon's decision in FL (full details outlined above) to dismiss the classified documents case against Trump, S/C Jack Smith said he intends to file an appeal.

From the DOJ: “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. The Justice Department has authorized the Special Counsel to appeal the court’s order.” Background as to why this DOJ statement: Judge Cannon issued a 93-page opinion dismissing the case on the grounds “…that the appointment of Special counsel Jack Smith to oversee the case was unconstitutional.”

Now this update on the law and process for appointment of all Special Counsels from Cornell Law and the U.S. Code countering Cannon's ruling:

HISTORICAL LEGAL BACKGROUND:

Inspired in part by Watergate, in 1978 Congress passed the Ethics in Government Act. Title VI of this act was known as the Special Prosecutor Act and later renamed the Independent Counsel Act, established formal rules for the appointment of a special prosecutor, or independent counsel. Such appointments vary in important ways from appointments made before and ever since that 1978 date.

Majorities of either party within the House or Senate Judiciary Committees could formally request that the AG appoint a special prosecutor on a particular matter, however, the decision of whether or not to appoint the independent counsel remained with the attorney general and it is not reviewable in court.

If the AG decided not to appoint an independent counsel in response to such a request, they were only required to respond in writing with the reasons. Although the decision to appoint a special prosecutor was still made by the AG, the actual selection of the special prosecutor was made by a three-judge panel called the Special Division, selected from the Courts of Appeals.

The law does allow special prosecutors to be removed except under specific circumstances such as wrongdoing or incapacitation. The special prosecutor provisions in the bill were temporary but were reauthorized by Congress in 1983 and 1987, expiring five years later in 1992; they were reinstated for another five years in 1994 before expiring again in 1999. The constitutionality of the law was affirmed by SCOTUS (7–1 decision) in Morrison v. Olson.

Roughly 20 special prosecutors, called independent counsels after 1983, were appointed under the Ethics in Government Act (cited here & above) and reauthorizations during the Carter, Reagan, H.W. Bush, and Clinton administrations. 

Those included significant investigations into the Iran–Contra affair and Whitewater, with the Whitewater ultimately leading to the impeachment of Bill Clinton over the Lewinsky scandal – he was tired & acquitted on February 12, 1999.

Numerous smaller investigations into cabinet secretaries for relatively minor offenses, such as drug use, were also carried out by independent counsels during that same period.

My 2 Cents: Based on the above history of the special counsel law and such, most legal scholars and experts say Judge Cannon has no cause to dismiss the case against Trump and that S/C Jack Smith is correct to challenge Judge Cannon and her decision in his appeal, which they say he likely to win and thus can see her removed and from the case entirely and that Smith can proceed as well as Judge Tanya Chutkan in the DC January 6 case against Trump on the same principle.

The background on that is from this NEWSWEEK story that ties into the SCOTUS Trump immunity ruling with the Justice Thomas part vis-à-vis S/C Jack Smith not legally appointed and that Judge Cannon apparently piggy backed in her false dismissal ruling.

From that NEWWEEK article: Special Counsel Jack Smith hit back at Supreme Court Justice Clarence Thomas in a new court filing, calling out Thomas for questioning Smith's legitimacy. Smith was appointed by AG Merrick Garland to head the investigations into Trump's actions surrounding the January 6 Capitol attack.

Trump has repeatedly claimed that he had presidential immunity for his activities pursued during his term in the White House. The High Court took on Trump's case, and in its July 1 opinion ruled that he is partially immune from charges leveled against him.

In the ruling, Justice Thomas poked the legitimacy of Jack Smith's appointment as special counsel, saying: “No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel's appointment before proceeding.” 

S/C Jack Smith threw a jab at Thomas, pointing out that: “The Attorney General is statutorily authorized to appoint a Special Counsel.” 

Smith not only threw that back at Thomas but also at Judge Cannon for her the same silly and mistaken reason. 

I believe Smith will win against Cannon based on Thomas’ false premise as well that Cannon used falsely. 

Time will tell but I believe Cannon will lose, be removed and Smith will still go after Trump and win that case as well. Fingers crossed. 

My major concern about Mar-a-Lago documents after more than over 25 year of handling a lot of Secret and Top Secret (SCI) material I still maintain these questions in my earlier post seen here.

FYI as I said: My concern all along ref: the most highly classified documents (TS/SCI) at Mar-a-Lago taken into FBI government custody after their daring DOJ approved raid has been: (1) What’s missing; (2) where are they; (3) what do they contain (contents); (4) who possibly has them; (5) does Donald Trump still hold all of some of them; and; (6) if he does, for what purpose? 

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