Jack Smith’s Other Big Trump Case Could Go Down In Flames After Judge Finds His Appointment ‘Unconstitutional’

A judge’s Monday decision finding special counsel Jack Smith’s appointment “unconstitutional” will almost inevitably end up before the Supreme Court, potentially dooming Trump’s Jan. 6 case along with his classified documents case.

Judge Aileen Cannon ruled that Attorney General Merrick Garland did not have the authority to appoint Smith, a private citizen who was also never appointed by the president nor confirmed by the Senate, to prosecute the case against Trump. Cannon’s decision to dismiss the classified documents case — which comes just weeks after the Supreme Court agreed that former presidents have immunity for official acts committed in office — is good news for Trump that will not be limited to the prosecution in Florida but will likely impact Smith’s other prosecution of Trump in Washington, D.C.

“The Mar-a-Lago documents case has long been considered the strongest one against Trump,” former federal prosecutor Joseph Moreno told the Daily Caller News Foundation. “With this decision, it is now indefinitely prolonged and may even fall away.”

Smith will appeal the ruling, his office said Monday. Smith could appeal Cannon’s ruling to the 11th Circuit Court of Appeals, which will take time and will likely result in a circuit split that would make a Supreme Court review almost certain.

“Although Judge Cannon will, no doubt, be attacked by the Left as a political hack who is doing Trump’s bidding, this would be a grossly unfair characterization,” John Malcolm, vice president for the Heritage Foundation’s Institute for Constitutional Government and former deputy assistant attorney general in the DOJ’s Criminal Division, told the DCNF.

Malcolm said Cannon’s 93-page ruling “should be judged on its merits, not on whether someone likes or dislikes the outcome of this particular case.”

“Indeed, the appointment of special prosecutors vested with almost unlimited authority and without any input from the legislature was one of the grievances cited against King George III in the Declaration of Independence and is the reason why the Constitution’s Appointments Clause was crafted to give Congress a role in the appointment of special prosecutors,” he told the DCNF. “Cannon’s opinion points out precisely why Attorney General Merrick Garland’s appointment of Smith violates the Constitution, since Congress never passed a statute giving Garland such authority.”

“Technically [District Court Judge Tanya Chutkan] is not bound by Cannon’s decision, and based on her hostility to Trump in the past she likely will not follow it,” Moreno told the DCNF. “But this allows Trump to raise the same issue and, again, knowing that the Supreme Court will ultimately back him.”

The D.C. Circuit previously rejected the argument Cannon accepted when it ruled on a challenge to special counsel Bob Mueller’s appointment in February 2019. This means Cannon’s ruling likely won’t have an immediate effect on Trump’s other case, Malcolm told the DCNF.

“That is the law in the D.C. Circuit, where the Jan. 6 case is pending,” he said.

“The issue of the appointment of Smith should equally impact both the [Florida] and D.C. case, but given the differing positions of the judges to date, they will likely remain in contradiction of one another until this case goes up on appeal,” former federal prosecutor Andrew Cherkasy told the DCNF. “Even at the Circuit Court level, there will likely remain division, and it will have to go to SCOTUS for clear direction.”

Justice Clarence Thomas weighed in on the issue in his concurring opinion in the Supreme Court’s presidential immunity ruling, signaling his belief that Smith’s prosecution “may violate our constitutional structure.”

Cherkasky said “it’s unclear whether the other justices will agree” with Thomas since “that issue was not specifically before the Court.”

“It will be many months of discussions within the Court to arrive at a majority opinion on this issue, and there is not good precedent to predict how they will decide this issue,” he told the DCNF.

Moreno argued that dropping the case entirely would likely “be the smartest political decision” in light of Biden’s “own history in mishandling classified documents.”

“Bottom line is that based on last week’s assassination of Trump, President Biden can appear to be a conciliatory force he can drop these cases all of which have significant legal questions and political ramifications,” Moreno told the DCNF. “If he is serious about tamping down the hostility and anger in our nation today, let’s hope he actually backs his words with action.”

Republished with permission from The Daily Caller News Foundation.