We have covered the Trump classified documents case since the indictment. To recap the background, in June 2023, a federal grand jury in the Southern District of Florida returned an indictment against former President Donald Trump, charging him with 31 counts of willful retention of national defense information under 18 U.S.C. § 793(e), along with several conspiracy and concealment charges. This case stemmed from an investigation into classified documents found at Trump’s Mar-a-Lago residence after he left office.

The investigation and subsequent prosecution were led by Special Counsel Jack Smith, who Attorney General Merrick Garland appointed in November 2022. Smith’s appointment came in response to the politically sensitive nature of investigating a former president and potential candidate for the upcoming election.

On February 22, 2024, Trump’s legal team filed a motion to dismiss the indictment, challenging the legality of Smith’s appointment and the funding of his office. This motion set the stage for Judge Aileen Cannon to dismiss the case on July 15, 2024.

The Appointments Clause and Its Significance

At the heart of this case is the Appointments Clause of the United States Constitution (Article II, Section 2, Clause 2). This clause outlines the process for appointing federal officers:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

This clause serves several crucial functions in the U.S. constitutional system:

• It ensures a separation of powers by involving both the executive and legislative branches in the appointment process for high-level officials.
• It provides a check on executive power by requiring Senate confirmation for principal officers.
• It allows for efficiency in government by permitting Congress to authorize the appointment of inferior officers by department heads or the President alone.

Trump Classified Documents Case Dismissed

The Court’s Reasoning

Judge Aileen Cannon’s order granting the motion to dismiss rests on several key points of reasoning:

Lack of Statutory Authority

The court examined the statutes cited in Smith’s appointment order (28 U.S.C. §§ 509, 510, 515, 533) and concluded that none of them actually grants the Attorney General the power to appoint a special counsel with the full authority of a U.S. Attorney.

The judge engaged in a detailed textual analysis of each statute, finding that they either deal with the general organization of the Department of Justice (§§ 509, 510), provide for the appointment of special attorneys to assist U.S. Attorneys (§ 515), or authorize the appointment of investigative officials within the FBI (§ 533).

Historical Practice and Congressional Intent

While acknowledging the historical use of special prosecutors and counsels, the court found that this practice has been inconsistent and does not amount to tacit congressional approval of the current appointment method. The judge emphasized that when Congress intends to create offices for special prosecutors, it has done so explicitly, as with the now-expired Independent Counsel Act.

Rejection of Nixon Precedent

The court addressed the government’s reliance on a statement in United States v. Nixon (1974) that seemed to approve the statutory basis for special counsel appointments. Judge Cannon determined that this statement was dicta (non-binding commentary) and not essential to the Nixon decision’s holding.

The court noted that the statutory authority for the Special Prosecutor’s appointment was not an issue that was raised, briefed, or argued before the Supreme Court in Nixon. The focus of that case was primarily on executive privilege and the justiciability of an intra-branch dispute.

The court also noted that in the decades since Nixon, the Supreme Court has placed renewed emphasis on the structural principles underpinning the Appointments Clause, beginning with Buckley v. Valeo in 1976. This evolving jurisprudence further supports treating Nixon‘s statement as non-binding in the current legal landscape.

Principal vs. Inferior Officer Status

While not ultimately relying on this point for her decision, Judge Cannon expressed skepticism about whether Smith could be considered an “inferior officer” not requiring Senate confirmation. She noted the broad powers granted to Smith and the limited supervision by the Attorney General under the current special counsel regulations.

Appropriations Clause Violation

In addition to the Appointments Clause issue, the court found that Smith’s office was improperly funded through a permanent indefinite appropriation intended for independent counsels appointed under now-expired statutes or “other law.” Since the court found no valid “other law” authorizing Smith’s appointment, it concluded that this funding violated the Appropriations Clause of the Constitution.

The Dismissal and Implications

The court dismissed the indictment against Trump and his co-defendants. While the order does not explicitly state whether the dismissal is with or without prejudice, this is a dismissal without prejudice from a procedural standpoint. From a practical standpoint, it is hard to imagine this case could be developed independently from the work that Special Counsel Smith put into this and the dollars already spent. Instead, the Government, if it wishes to move forward, is likely to appeal this decision.

The order dismissing the case states that “all actions that flowed from his defective appointment—including his seeking of the Superseding Indictment on which this proceeding currently hinges—were unlawful exercises of executive power.” This language implies that Smith’s entire investigation and prosecution were tainted by the constitutional violation.

Challenges in Bringing New Charges

Even if the dismissal were technically without prejudice, there would be significant challenges in bringing these charges again:

• Tainted Evidence: Any evidence gathered by Smith’s office during the investigation could potentially be considered “fruit of the poisonous tree” and thus inadmissible in a new prosecution.
• Time Constraints: The process of appointing a new prosecutor (either through Senate confirmation or by reassigning the case to a U.S. Attorney’s office) and potentially re-investigating aspects of the case could bump up against statutes of limitations for some charges.
• Political Considerations: Given the high-profile nature of the case and its dismissal on constitutional grounds, there may be political reluctance to pursue a new prosecution, especially as the 2024 election approaches.
• Double Jeopardy Concerns: While double jeopardy wouldn’t technically apply to a dismissal before trial, defense attorneys could potentially argue that the extensive pre-trial proceedings have already put Trump in jeopardy.

The Appeal Process

The Department of Justice has the right to appeal this decision, and given the significance of the case, an appeal is highly likely. The appeal would go to the United States Court of Appeals for the Eleventh Circuit, which has jurisdiction over federal cases from Florida, Georgia, and Alabama.

The Eleventh Circuit currently has 12 active judges:

• William H. Pryor Jr. (Chief Judge, appointed by George W. Bush)
• Charles R. Wilson (appointed by Bill Clinton)
• Beverly B. Martin (appointed by Barack Obama)
• Adalberto Jordan (appointed by Barack Obama)
• Robin S. Rosenbaum (appointed by Barack Obama)
• Jill A. Pryor (appointed by Barack Obama)
• Kevin C. Newsom (appointed by Donald Trump)
• Elizabeth L. Branch (appointed by Donald Trump)
• Britt C. Grant (appointed by Donald Trump)
• Robert J. Luck (appointed by Donald Trump)
• Barbara Lagoa (appointed by Donald Trump)
• Andrew L. Brasher (appointed by Donald Trump)

As of July 2024, the balance of the court leans conservative, with seven judges appointed by Republican presidents and five by Democratic presidents. However, it’s important to note that a judge’s appointing president doesn’t always predict how they will rule, especially on complex constitutional issues.

The appeal would typically be heard by a panel of three judges randomly selected from the court. Either party could then request an en banc hearing before the full court if they disagree with the panel’s decision.

Given the constitutional significance of the case, it’s possible that the losing party at the Eleventh Circuit would seek review by the Supreme Court, regardless of the outcome at the appellate level.

Broader Implications

This ruling has potential far-reaching consequences beyond the Trump case:

• Special Counsel Appointments: If upheld, this decision could invalidate the current method of appointing special counsels, potentially affecting other ongoing investigations.
• Executive Branch Structure: It raises questions about the constitutionality of other positions within the executive branch that are not explicitly created by statute or confirmed by the Senate.
• Congressional Action: The decision may prompt Congress to consider legislation explicitly authorizing and defining the role of special counsels.
• Separation of Powers: The ruling emphasizes strict adherence to constitutional separation of powers, potentially influencing future cases on executive authority.
• Political Ramifications: The dismissal of charges against a former president and current candidate will undoubtedly have significant political repercussions and public debate.

Judge Cannon’s decision highlights the complex interplay between law, politics, and constitutional interpretation in the American system. As the case potentially moves through the appellate process, it will likely continue to spark debate about the proper balance of powers in the federal government and the limits of executive authority.