Washington — The federal judge overseeing the case alleging former President Donald Trump mishandled sensitive government documents after leaving the White House has dismissed the charges against him and his two codefendants.
U.S. District Judge Aileen Cannon said in a 93-page order that she has granted Trump’s bid to dismiss the indictment based on the unlawful funding and appointment of special counsel Jack Smith, who brought the charges against the former president.
“The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers,” wrote Cannon, who was appointed to the bench by Trump. “The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a head of Department, and in the process threatening the structural liberty inherent in the separation of powers.”
The former president faced 40 charges stemming from his handling of documents marked classified after leaving office and allegedly obstructing the Justice Department’s investigation. The former president and his aides Walt Nauta and Carlos de Oliveira were charged in an alleged scheme to impede the federal probe, and all three pleaded not guilty.
Justice Department via AP
Trump said in a statement on social media that all civil and criminal cases brought against him should also be dismissed, and he accused the Justice Department of coordinating the indictments in an effort to harm his presidential campaign. There is no evidence that the prosecutions are politically motivated, and the president has repeatedly stressed that the Justice Department operates independently.
“Let us come together to END all Weaponization of our Justice System, and Make America Great Again!” Trump wrote.
His lawyer, Chris Kise, praised Cannon’s decision as “courageous and correct” and criticized the prosecution brought by Smith.
“Judge Cannon today restored the rule of law and made the right call for our America. Jack Smith is not above the law and must be held accountable under the Constitution,” he said in a statement. “From the outset, the attorney general and special counsel have ignored critical constitutional restrictions on the exercise of the prosecutorial power of the United States.”
An attorney for De Oliveira, the Mar-a-Lago property manager, said in a statement, “We certainly agree with the court’s decision. But this case has been absurd from the start and Carlos should never have been but in this situation by the government.”
Smith will appeal the order to the U.S. Court of Appeals for the 11th Circuit, Peter Carr, a spokesperson for the special counsel, said in a statement. The dispute could eventually land before the U.S. Supreme Court.
“The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the attorney general is statutorily authorized to appoint a special counsel,” Carr said.
The dismissal of the case caps a stunning weekend for the former president, who was the target of an assassination attempt during a rally in Butler County, Pennsylvania, on Saturday. Trump said a bullet grazed his ear while he was addressing the crowd of his supporters. The gunman, identified by the FBI as 20-year-old Thomas Matthew Crooks, was killed by Secret Service.
Trump is poised to formally accept the Republican presidential nomination at the party’s convention in Milwaukee, which kicks off Monday.
Cannon’s ruling
In her order, Cannon said Smith’s appointment violates the Constitution’s Appointments Clause and his use of a “permanent indefinite appropriation” violates the Appropriations Clause. Dismissal of the indictment is the “only appropriate solution” for the violation of the Appointments Clause, the judge said, and she ordered the case to be closed. Cannon did not address the remedy for the funding violation given her finding that the indictment should be dismissed on the grounds that Smith was improperly appointed.
The judge wrote that if the political branches want to grant the attorney general the power to appoint Smith to investigate and prosecute Trump, with the powers of a U.S. attorney, there is a valid means to do so: he can be appointed and confirmed through the method laid out in the Appointments Clause, or Congress can authorize his appointment through legislation consistent with the Constitution.
“Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution?” Cannon wrote. “After careful study of this seminal issue, the answer is no.”
The judge said that none of the statutes cited as legal authority for Smith’s appointment give the attorney general the right to appoint a federal officer with the prosecutorial power wielded by the special counsel.
“The Framers gave Congress a pivotal role in the appointment of principal and inferior officers,” Cannon wrote. “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.”
Attorney General Merrick Garland appointed Smith in 2022 to oversee the two federal investigations into the former president. He said at the time, and Smith’s team of prosecutors have argued, that legal and historical precedent allowed for the appointment of an independent prosecutor to handle the probes. Attorneys general from administrations of both parties have appointed special counsels in recent years to oversee sensitive investigations, and several federal courts have rejected similar constitutional challenges to special counsel appointments. Among those was the selection of Robert Mueller to investigate possible ties between Trump’s 2016 campaign and Russia.
Trump’s bid to dismiss the indictment on the grounds that Smith was not authorized to prosecute him was considered a long-shot.
In addition to Smith, Garland appointed David Weiss to lead an investigation into Hunter Biden, Mr. Biden’s son. But unlike Smith, who was top war crimes prosecutor at The Hague before he was tapped to investigate Trump, Weiss is a Senate-confirmed U.S. attorney in Delaware. Weiss brought charges against Hunter Biden in two cases: one in Delaware, where he was convicted of gun charges, and the second in California, where is charged with tax crimes.
Smith also charged Trump with four counts stemming from his alleged attempts to subvert the peaceful transfer of power after the 2020 presidential election. Cannon wrote in her ruling that the dismissal only applies to the classified documents case and has no bearing on any cases outside of her control.
The judge rejected comparisons of Smith’s role as special counsel to that of “special attorneys,” and said the appointment of a private citizen like Smith, rather than an already-retained federal employee, “appears much closer to the exception than the rule.”
“In the end, there does appear to be a ‘tradition’ of appointing special-attorney-like figures in moments of political scandal throughout the country’s history,” Cannon wrote. “But very few, if any, of these figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision.”
Cannon’s dismissal on the appointments clause violation comes after the Supreme Court ruled two weeks ago that Trump is entitled to immunity from federal prosecution for official acts taken while in office, a decision that stemmed from the 2020 election-related case. Justice Clarence Thomas authored a solo concurring opinion that called into question the constitutionality of Smith’s appointment.
Trump and his lawyers had highlighted Thomas’ opinion, which is not binding, in recent filings to Cannon and argued that it bolstered their bid to toss out the indictment based on Smith’s allegedly unlawful appointment.
The former president was indicted in South Florida last year, and the case proceeded slowly. A trial was set to begin in late May, but Cannon indefinitely postponed its start. The judge held several days of hearings in June to explore whether Smith’s appointment was within constitutional bounds and took the unusual step of allowing outside attorneys to participate in arguments before her.
In addition to the two sets of charges brought by Smith, Trump was also indicted on state charges in New York and Fulton County, Georgia.
In the New York case, a jury found Trump guilty in May on 34 counts of falsification of business records stemming from a $130,000 “hush money” payment his attorney made to adult film star Stormy Daniels in the run-up to the 2016 election. The verdict made Trump the first former president to be convicted of a crime, and he is set to be sentenced in September. But the former president is seeking to have the conviction tossed out, citing the Supreme Court’s immunity ruling.
The Fulton County case stems from what prosecutors claim was a multi-pronged scheme to overturn the results of the 2020 election in Georgia. Trump is facing 10 counts there and has pleaded not guilty. A trial date has not been set, as a state appeals court is weighing whether to allow Fulton County District Attorney Fani Willis to remain on the case. How that case proceeds will also be impacted by the Supreme Court’s immunity ruling.
Cannon’s ruling will not impact the Fulton County and New York cases, since they were brought by local prosecutors. But Trump and his team are likely to use the decision as the basis for tossing out Smith’s case in Washington, D.C., involving an alleged scheme to subvert the transfer of presidential power.
The documents case
Smith’s case against Trump alleging he unlawfully held onto the nation’s secrets after leaving office was considered to be the strongest and potentially greatest legal threat to the former president.
His indictment last June, followed by new charges brought weeks later, were the culmination of a 15-month-long effort by the federal government to retrieve records Trump had at his South Florida residence, Mar-a-Lago, after his presidency ended in January 2021.
Wrangling between the National Archives and Records Administration and Trump’s representatives went on for months behind the scenes before the fight over the materials burst into public view on Aug. 8, 2022, when the FBI conducted a court-authorized search of Mar-a-Lago and found 100 documents marked classified. Cannon had agreed to appoint an independent arbiter to sift through the documents, but her decision to do so was overturned by a federal appeals court.
Before then, the Archives had retrieved 15 boxes of presidential records from Mar-a-Lago in January 2022, which contained 184 documents bearing classification markings. The Justice Department also obtained a grand jury subpoena in May 2022 for all documents with classification markings that were in Trump’s possession at Mar-a-Lago, and his lawyers turned over 38 records.
All told, investigators recovered roughly 300 sensitive documents from the South Florida property. Thirty-two of those records underlie counts of willful retention of national defense information that Trump was charged with.
Photos taken by the FBI or obtained by investigators during the probe showed boxes of documents and other material stacked in a storage room at Mar-a-Lago, on a stage in the estate’s ballroom and in a bathroom and shower.
Additional information had continued to trickle out into the public’s view as Cannon unsealed documents related to the federal investigation into Trump, including court records showing that federal agents suspected the former president might have tried to hinder the investigation in ways not previously known.
