Federal Judge Dismisses Trump Documents Case, Says Jack Smith Unlawfully Appointed

“The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution,” the order reads.

The 93-page opinion and order was issued after days of oral arguments over the special counsel’s appointment and the statutory authority the Justice Department argued Attorney General Merrick Garland used to appoint Mr. Smith.

This is a “critical constitutional restriction stemming from the separation of powers,” the judge wrote, and Mr. Smith’s appointment “effectively usurps that important legislative authority.”

The defense had argued that Mr. Smith had the powers of a principal officer and had not gone through such an appointment process.

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Prosecutors argued Mr. Smith was an inferior officer and that the attorney general had the statutory authority to appoint a special counsel, relying on several different statutes naming independent counsel, special attorneys, and other similar positions, but not a “special counsel statute,” as the judge noted in a hearing.

Judge Cannon accepted the prosecutors’ view that the special counsel is an “inferior Officer” but found that there was no statutory authority allowing the head of the Justice Department to appoint such inferior officers.

“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,” the judge wrote.

The judge found that Congress has passed laws allowing the president to nominate an attorney general, deputy attorney general, associate attorney general, solicitor general, assistant attorney general, and each time uses language in line with the Appointments Clause.

U.S. Attorneys also go through the nomination and confirmation process, and some third party amicus experts had argued that if the attorney general had selected a confirmed U.S. Attorney for the position of special counsel, defendants could not have brought such a motion.

Prosecutors had pointed to statutes concerning the attorney general, Federal Bureau of Investigation, U.S. Attorneys, marshals, trustees, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and some concerning the expired Independent Counsel office.

“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.”

The judge found the prosecutors’ arguments “strained” and relied on “inconsistent history.”

“Dismissal of this action is the only appropriate solution for the Appointments Clause violation,” the order reads.