Judge Aileen Cannon repeatedly referenced Justice Clarence Thomas on Monday in her surprise decision to toss out former President Donald Trump’s classified documents case.
In her 93-page ruling, Cannon cited a concurring opinion Thomas wrote in the Supreme Court’s recent decision on presidential immunity, in which Thomas said congressional input is necessary for special counsel appointments.
Cannon used Thomas to bolster her decision that Attorney General Merrick Garland unlawfully appointed Jack Smith as special counsel. The designation gave Smith the authority to conduct a sweeping investigation and prosecution of Trump largely independent of the rest of the Department of Justice.
Cannon noted how Thomas warned that the authors of the Constitution specified that the legislative and executive branches must both be involved in creating and filling offices, such as that of a special counsel, to avoid concentrating too much power in one body.
She cited the conservative justice's concurring opinion in the presidential immunity case three times, as well as two other opinions of Thomas's.
Cannon ruled that the appointments clause of the Constitution requires the Senate to have confirmed a special counsel, similar to how the Senate confirms U.S. attorneys. As an alternative, Congress could pass a law creating the position and giving the authority to the president to fill it, Cannon wrote.
Prior to his appointment as special counsel, Smith worked at the DOJ as an acting U.S. attorney and later investigated and prosecuted Kosovo War crimes. Unlike many other special counsels, Smith has never served as a Senate-confirmed U.S. attorney, which means he has never been vetted by Congress.
Cannon’s decision, if it were to stand, would serve to discredit some past special counsel investigations, depending on which statutes they were authorized under.
Smith, who argued that existing laws allowed Garland to appoint him, now has the option to appeal Cannon’s ruling to the Atlanta-based 11th U.S. Circuit Court of Appeals.
A spokesman for Smith’s office indicated in a statement provided to the Washington Examiner that prosecutors would move forward with an appeal.
“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," spokesman Peter Carr said. "The Justice Department has authorized the Special Counsel to appeal the court’s order.”
Smith charged Trump last year with 40 counts of illegally retaining classified documents when he left office and obstructing a federal investigation.
Cannon, a Trump appointee, has drawn harsh criticism from some legal analysts, who have argued she has moved too slowly in addressing the many legal disputes that have arisen in the complex case, which involves alleged Espionage Act violations and elaborate procedures for handling classified discovery.
Critics described her decision on Monday as “utterly illegal” and “clearly political” and accused her of disregarding “decades of institutional precedent.”
Some, such as former Virginia-based U.S. attorney John Fishwick, said Thomas opened the door for Cannon to issue the stunning ruling tossing out Trump’s case.
“Justice Thomas signaled he thought it was unconstitutional to appoint Jack Smith as Special Counsel and that gave Judge Cannon a legal pathway for today’s decision," Fishwick told the Washington Examiner. "Jack Smith will appeal and ask for an expedited appeal. ... Massive win for the Trump legal team.”
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Chief Justice John Roberts wrote the majority opinion for the Supreme Court in the landmark decision that found presidents enjoy some immunity from criminal prosecution. Thomas wrote a concurring opinion in which he gave significant attention to Smith’s appointment.
“I write separately to highlight another way in which this prosecution may violate our constitutional structure," Thomas wrote. "In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been 'established by Law,' as the Constitution requires."
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