Judge Cannon's Unexpected--and Unearned--Gift to Jack Smith

The Special Counsel has suffered one humiliation after another in Cannon's Florida courtroom as the documents case imploded amid revelations of malfeasance and misconduct.

Jack Smith should be writing a thank you note to U.S. District Court Judge Aileen M. Cannon right about now.

By dismissing the so-called classified documents case against Donald Trump and his two co-defendants, Cannon just spared the special counsel and his team months of continued humiliation in her Florida courtroom and, eventually, in front of the nation.

In a 93-page order issued on Monday, Cannon, in her typically cautious and detailed manner, explained why Smith’s appointment violated the Constitution; Attorney General Merrick Garland appointed Smith in November 2022 to take over the Department of Justice’s existing investigations into Trump’s role in the events of January 6 and for allegedly hoarding national defense files at Mar-a-Lago after he left office.

Trump’s lawyers earlier this year filed a motion to dismiss the 40-count indictment, handed down by Smith in July 2023, based on the fact Smith’s appointment violated both the Appointments Clause and and the Appropriations Clause of the Constitution. Smith, of course, opposed the motion, arguing that internal DOJ regulations and a random set of federal statutes—none that specifically designates the appointment of a special counsel since the Independent Counsel Act expired in 1999—enabled his position.

Cannon held nearly two days of hearings on the issue last month, a proceeding that consisted of weedy debate over the definition of “officers” and “officials.” (David Fischer, a criminal defense attorney in the D.C. area, wrote a helpful explainer here.) 

Trump’s side received a big boost from former Attorneys General Edwin Meese and Michael Mukasey who warned in an amici brief that Smith’s unconstitutional appointment effectively creates a “shadow government” within the DOJ that violates separation of powers. But the fatal blow likely came at the hand of Supreme Court Justice Clarence Thomas just a few weeks ago.

Thomas to the Rescue!

In a separate concurring opinion in Trump v US, which addressed the question of presidential immunity from criminal prosecution, Thomas directly challenged the constitutionality of Smith’s appointment. (The immunity matter originated out of Smith’s indictment against Trump in Washington for Jan 6.)

“Whether the Special Counsel’s office was ‘established by Law’ is not a trifling technicality,” Thomas wrote in the 6-3 opinion published July 1. “If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. There are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed.”

Cannon, appearing to partially rely on Thomas’ words, answered those questions today. No statute cited by Garland in his appointment order, Cannon concluded, “vests the Attorney General with authority to appoint a Special Counsel like Smith, who does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction.” (Another element of the debate centered on whether Smith, like many past independent/special prosecutors, required Senate approval.) “No such special counsel statute exists today.”

Cannon further determined that Smith’s position is one of a “principal officer” similar to that of a U.S. Attorney, who must be confirmed by the Senate. “The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether in this case or in another case, whether in times of heightened national need or not.”

She dismissed the case and terminated all pending motions and deadlines.

Despite the Outrage, the Biden Regime Should Celebrate

Cannon’s courageous albeit unexpected move prompted immediate hysterics on the Left. Former Attorney General Eric Holder, who must hold the world record for speed reading since he posted his analysis of the 93-page order an hour after it went up on the docket, harshly denounced her decision. “The dismissal of the docs case is so bereft of legal reasoning as to be utterly absurd. Has to be appealed and this incompetent judge removed. This is all about delay-and the hope that an unbound (by the Supreme Court) elected Trump will have the ability to dismiss the cases.”

Others, including MSNBC legal analyst and shameless regime bootlicker Barbara McQuade, claimed an appeal by the DOJ might result in Cannon’s removal by the 11th Circuit Court. “Dismissal of docs case may actually be good news for Jack Smith,” she posted on X.

For once, I agree with McQuade. By closing the case, Cannon did Smith—and the entire Biden regime—a huge favor. Cannon’s death-by-a-thousand-cuts dismantling of the case will finally stop Smith’s bleeding.

Shocking revelations about the dirty, sloppy, corrupt, and dishonest nature of the investigation and prosecution will end, at least for now. Smith won’t have to defend his baseless and petulant gag order seeking to prohibit Trump from publicly criticizing law enforcement agents involved in the case.

FBI agents won’t have to take the stand to defend the unprecedented raid of Mar-a-Lago in August 2022 or admit they used classified cover sheets as props or how they violated the search warrant to unnecessarily ransack the bedroom of Melania Trump and Barron Trump.

Investigators won’t have to explain why evidence is not in the same condition as it was after the Mar-a-Lago raid or why some of the alleged verboten documents are missing.

DOJ officials including deputy attorney general Lisa Monaco won’t have to disclose her collaboration with the National Archives to concoct a documents crime against Donald Trump as early as mid-2021, long before anyone allegedly found “classified” papers in the boxes the former president turned over to the archives.

On that score, NARA officials including former archivist David Ferriero—an Obama appointee who called January 6 the worst day of his life—won't have to testify about why he started harassing and threatening Trump’s transition team with legal action just a few months after Trump left office, something he had no authority to do and admitted he had never done before.

Or why he and NARA general counsel Gary Stern visited the White House on at least a few occasions in 2021, months before the purported opening of the official criminal investigation into Trump’s handling of classified documents, For now, a jury and the public won’t see meeting notes and correspondence between NARA and top White House officials including Biden’s general counsel and chief of staff.

Bad Behavior Exits the Spotlight

Jay Bratt, Smith’s lead prosecutor, will get a temporary reprieve from the routine smackdowns he gets by both Cannon and defense counsel. Bratt also won’t have to face questioning about alleged threats he made to one of the defense lawyers in an attempt to get one of Trump’s personal aides and co-defendant to cooperate, a matter the DOJ is supposedly investigating.

David Harbach, Smith’s other lead lawyer, can take some much-needed chill pills. His recent antics have resulted in verbal and written admonishments by Cannon, including a warning for him to “just calm down” during one embarrassing temper tantrum in court. During a hearing last month, Cannon had to cut off Harbach after he complained loudly about the “unfair” proceedings in the case.

But Smith should really thank his lucky stars, to the extent he has any, that the American people won’t see his ineptitude up close in any trial in southern Florida. Smith, a former Obama DOJ apparatchik, has never lived up to his media-manufactured image as a prosecutorial killer. Except for a few easy layup rulings in Washington courts, run by Trump haters including former chief judge Beryl Howell, Smith has been absolutely obliterated in Florida and the Supreme Court.

Smith’s last hope to salvage any remaining shards of his unjustified reputation lies in the friendly courtroom of Judge Tanya Chutkan but that will be another painful slog.

But for now, the only person who should be happier than Donald Trump and his co-defendants that this case is closed is Jack Smith.