Judge dismisses case over Donald Trump’s secret documents
Judge Aileen Cannon dismissed Donald Trump’s case over the secret documents, ruling that the appointment of the special counsel was unlawful.
A federal judge’s controversial decision to dismiss charges against former President Donald Trump in his long-running case over secret documents may have been prompted by a legal comment made by Chief Justice Clarence Thomas two weeks earlier.
On July 1, Thomas joined the Supreme Court’s conservative majority in dramatically expanding the scope of presidential immunity for crimes committed in office. But he also, in his separate, competing opinion, lit the fuse for Monday’s bombshell by U.S. District Judge Aileen Cannon.
Thomas, the court’s longest-serving justice, argued that the appointment of special counsel Jack Smith, who is prosecuting both the secret documents case and a separate election interference case, is unconstitutional.
This previously fringe notion, that special counsels — used for decades by administrations of both parties — are illegitimate without specific legislation or Senate approval, had been advanced by Trump in Cannon’s Florida courtroom.
On July 15, Cannon cited Thomas’ argument four times in dismissing the charges.
More: How Jack Smith Can Ensure Charges Against Donald Trump Over Use of Secret Documents Are Reinstated
“This is an aggressive ruling,” Jonathan Adler, a law professor at Case Western Reserve University, told USA TODAY. “It calls into question a broad range of Justice Department appointments. I’m not sure she got it right on the merits.”
Thomas “set the table and Judge Cannon took his seat,” New York University law professor Melissa Murray wrote on social media.
From Supreme Court Aside to Florida Bombshell
Normally, Supreme Court justices issue opinions only on the issue before them, but Thomas has been known to use his written opinions to address issues not before the court.
In his immunity opinion, he wrote: “I am not satisfied that there is a position for the Special Counsel ‘established by law,’ as the Constitution requires.”
If “there is no law that establishes the office that the Special Counsel holds, then he cannot proceed with this prosecution,” Thomas added. “A private citizen cannot prosecute anyone, let alone a former president.”
Trump is accused of hiding classified documents taken from the White House at his private Florida club and asking aides to delete security camera footage that showed documents hidden from investigators.
Cannon, who was appointed by Trump in 2020 and had already issued several widely criticized rulings in Trump’s favor in the documents case, had signaled his openness to the argument by holding a hearing on the constitutional question, an unusual move for a district judge.
Cannon agreed with a group of conservative legal thinkers who filed their conclusions with the court, ruling that Smith’s position at the Justice Department was unconstitutional. This was met with derision from many legal commentators, who said the decision would likely be reversed.
Trump, who had just died after Saturday’s failed assassination attempt in Butler, Pennsylvania, celebrated “this dismissal of the charges against Lawless in Florida” and called for the other criminal and civil cases against him to be dismissed.
Clarence Thomas and ‘persuasive authority’
Adler, a conservative legal scholar, noted that when a constitutional question has not been resolved by the Supreme Court or the state appeals court, lower district judges like Cannon must stand on less certain legal grounds.
The legality of a special counsel “is something that there is no controlling authority over,” he said. In the absence of controlling authority, “judges are constantly citing what we call ‘persuasive authority,’” in this case Thomas’ July 1 opinion.
While Adler said there’s nothing unusual about a judge citing the agreement of a single chief justice in that situation, he added: “I’m skeptical that she’s right. I wouldn’t be surprised if her decision is overturned.”
Other legal scholars argue that the constitutionality of special prosecutors was established decades ago, when the Supreme Court rejected President Richard Nixon’s complaint against a special prosecutor investigating the Watergate affair.
More: Trump rejects Jack Smith’s competency in secret documents case hearing
In 2019, a Washington, DC, appeals panel rejected a challenge to special counsel Robert Mueller’s investigation into Russian interference in the 2016 election on the same grounds.
But Cannon had legal firepower of her own, quoting Thomas in her ruling that the Supreme Court’s decision in the Nixon case was a “dictum,” an opinion that set no legal precedent, giving her the opportunity to dismiss the charges.
Constitutional ‘spider sense’
Thomas “has a habit of writing standalone opinions raising constitutional issues that are not before the court,” Adler said.
None of the other eight justices agreed with Thomas’ opinion questioning the legality of Smith’s tenure, meaning Trump could be left without help from the high court if the conservative 11th Circuit Court of Appeals overturns Cannon’s decision.
Some scholars have raised the question of why Cannon continued.
“Following what one justice says when the others don’t, taking a position that is disruptive… Justices normally wouldn’t just make a decision because it’s going to be reversed anyway — and most justices don’t like to be reversed,” said Sam Erman, a former law clerk to Justice Anthony Kennedy who teaches at the University of Michigan Law School.
In these kinds of cases, he added, “your constitutional sense of justice tingles. You say, ‘What’s going on?’”
But Cannon is not like most judges: her actions in the documents case have come under fierce criticism.
She has raised eyebrows from the start of the case. Her order freezing the investigation into the documents was overturned in a sharp ruling in December 2022 by a unanimous panel of Republican appointees to the 11th Circuit Court.
One thing is for sure: Cannon’s latest decision is good for the Republican presidential candidate. Even if her ruling is overturned and the charges reinstated, it won’t happen before Election Day.
“I don’t have any specific insight into Judge Cannon’s motives,” Erman said. “But she has made a series of decisions that will ensure that this case will not be heard until after the election.”
