After 'careful study,' Judge Cannon throws out Trump's Mar-a-Lago indictment and finds AG Merrick Garland unlawfully appointed Jack Smith as special counsel

Left: Special Counsel Jack Smith. (AP Photo/J. Scott Applewhite, File); Center: Aileen M. Cannon speaks remotely during a Senate Judiciary Committee hearing (U.S. Senate); Right: Donald Trump speaks with supporters at the Westside Conservative Breakfast, June 1, 2023, in Des Moines, Iowa. (AP Photo/Charlie Neibergall, File)

U.S. District Judge Aileen Cannon on Monday favorably cited Justice Clarence Thomas and her own “careful study” of the issues at play to throw out Donald Trump’s Mar-a-Lago indictment, agreeing that U.S. Attorney General Merrick Garland unlawfully appointed Jack Smith to prosecute the former president.

“Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no,” Cannon wrote. “None of the statutes cited as legal authority for the appointment— 28 U.S.C. §§ 509, 510, 515, 533—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. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise.”

The dismissal comes two days after the attempted assassination of Trump at a rally in Pennsylvania and two weeks after the U.S. Supreme Court’s immunity ruling in Trump v. United States .

As Law&Crime noted at length when reporting on the Supreme Court decision, Justice Thomas stood out with a concurrence that sided with arguments that pro-Trump amici curiae (Latin for friends of the court) made in Cannon’s courtroom in favor of tossing the Espionage Act indictment for willful retention of national defense information — that is, classified documents — at Mar-a-Lago.

“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President,” Thomas wrote.

Special counsel Smith has called defense challenges of his power to prosecute Trump “ meritless ,” writing that he is an “inferior officer” under the Constitution who didn’t need to be confirmed by the Senate and who remains subject to the “plenary supervision” of AG Garland and fireable.

But Justice Thomas clearly did not agree (and neither did Cannon).

“Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision,” Cannon wrote.

More Law&Crime coverage: Justice Thomas just gifted Judge Cannon a reason to blow up Trump’s Mar-a-Lago prosecution, another bad sign for Jack Smith

In her order, Cannon, a Trump appointee, wrote that Garland violated the Constitution by appointing a special counsel that “effectively usurps” the legislative branch and offends the separation of powers.

“The bottom line is this: 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. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,” she wrote. “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, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause.”

Cannon favorably cited Thomas’ concurrence three times, and cited the justice five times total. She also agreed that Smith is unconstitutionally funded through a “permanent indefinite appropriation,” but said she “need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds.”

At the end of her order, the judge “directed” the clerk to “CLOSE this case,” canceled upcoming hearings and deadlines, and mooted all pending motions.

All of this amounts to a huge win for Trump’s defense and a massive blow to Smith, whether Cannon’s dismissal stands or not. If or when the special counsel appeals to the U.S. Court of Appeals for the 11th Circuit, that process and all that would follow would drag out well into the future, in the view of legal experts.

Trump has already reacted to the dismissal of the indictment on Truth Social by calling for the dismissal of all his civil and criminal cases:

As we move forward in Uniting our Nation after the horrific events on Saturday, this dismissal of the Lawless Indictment in Florida should be just the first step, followed quickly by the dismissal of ALL the Witch Hunts — The January 6th Hoax in Washington, D.C., the Manhattan D.A.’s Zombie Case, the New York A.G. Scam, Fake Claims about a woman I never met (a decades old photo in a line with her then husband does not count), and the Georgia “Perfect” Phone Call charges. The Democrat Justice Department coordinated ALL of these Political Attacks, which are an Election Interference conspiracy against Joe Biden’s Political Opponent, ME. Let us come together to END all Weaponization of our Justice System, and Make America Great Again!

Read the dismissal order here .

The post After ‘careful study,’ Judge Cannon throws out Trump’s Mar-a-Lago indictment and finds AG Merrick Garland unlawfully appointed Jack Smith as special counsel first appeared on Law & Crime .