Judge Aileen Cannon’s Dismissal of Trump’s Case Ignores Legal Precedent and History

Civil Rights Policy Brief #228 | By: Rod A. Maggay | July 29, 2024

Featured Photo: www.secure.numero.ai

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On Jul 15, 2024, Judge Aileen Cannon of the United States District Court for the Southern District of Florida issued an order granting former President Trump’s Motion to Dismiss Superseding Indictment in the criminal case United States v. Trump. The basis of Judge Cannon’s order is that the appointment of Special Prosecutor Jack Smith to pursue the case against Mr. Trump was in violation of two sections of the United States Constitution – the Appointments Clause and an Appropriations Limitation Clause found in Article One, Section 9 of the Constitution.

Article II, Section Two, Clause Two of the Appointments Clause provides that the President shall appoint all Ambassadors, members of the Supreme Court and all other officers. Additionally, the President is empowered to make all other appointments (usually referred to as “inferior officers”) that are established by law. Article One, Section Nine, Clause Seven of the Constitution refers to funding and while Judge Aileen Cannon mentions that Special Prosecutor Jack Smith’s appointment violated this clause too  because of the indefinite period of funding for his activities, she did not rely on it to dismiss the case. She relied only on the Appointments Clause. LEARN MORE

Policy Analysis: In the long history of the use of special counsels and special prosecutor’s in this nation’s history, how did it get to the point where a federal district judge seemingly out of the blue declared them unconstitutional?

It starts with former President Trump’s federal election interference case in Washington, D.C. Trump appealed to the Supreme Court that he had broad immunity for a number of actions he took while President. The Supreme Court issued their landmark decision and made it a point that presidential immunity must distinguish between official acts and unofficial acts before proceeding with a criminal case. Justice Clarence Thomas issued a concurring opinion in the case (not joined by any other member of the Court) that questioned the constitutionality of the appointment of special counsels and prosecutors. Justice Thomas reasoned that if a special counsel is a “principal officer” then he must be appointed by a President and then be confirmed by the Senate, similar to the selection of Supreme Court Justices. If a special counsel is considered an “inferior officer” Senate approval would not be required but a congressional statute authorizing a special counsel would still be needed. Currently, there is no congressional statute on the books authorizing the appointment of a special counsel or special prosecutor. This language in Justice Thomas’ concurring opinion is what Judge Cannon seized on to rule on her motion dismissing Trump’s criminal case.

However, Judge Aileen Cannon may have committed judicial malpractice in her order because of how she ignored legal precedents, even a unanimous prior Supreme Court case. In the 1974 case United States v. Nixon that arose out of the Watergate scandal, the Supreme Court unanimously held that a President had to hand over documents and tapes to a special prosecutor. They also analyzed the appointment of the special prosecutor and found it to be valid under the law at the time. The rule appointing special prosecutors was later changed in the 1990’s and written into Department of Justice regulations with input by members of Congress. However, since Congress did not officially vote to make these new regulations law, the appointment of special prosecutors is viewed in some circles as not legally valid. But other lower court cases have reviewed the appointment of special counsels and held them to be valid – notably in 1987 when reviewing the appointment of a special counsel for the Iran – Contra scandal and in 2019 when reviewing the appointment of Robert Mueller III to investigate ties between the Trump campaign and Russian individuals. However, Judge Cannon has rejected all of these precedents and proceeded to use Justice Thomas’ concurring opinion as the basis for her order dismissing the case.

The amazing thing about Justice Thomas’ concurring opinion in the presidential immunity case was that it was not necessary. Judges and Justices are trained to only rule on the issues before them and only those issues are binding precedent on all other lower courts. But by bringing up the issue of the constitutionality of appointment of special prosecutors, Justice Thomas put the issue out there for other judges and Trump defense attorneys to grasp on. A judge has now decided to use it as the basis for her order and sets up the possibility that other Trump cases will use this issue to delay the case, set up a likely lengthy appeals process and maybe even have other Trump cases dismissed. As disappointing as Judge Cannon’s decision was, Special Prosecutor Jack Smith and his team are now in the process of appealing Judge Aileen Cannon’s order to see if they can have her misguided order overturned. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources

• VOA News – history of special counsel investigations.
• PBS – history of special counsels with more analysis of the cases and legal issues involved.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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