From left: Special Counsel Jack Smith, U.S. District Court Judge Aileen M. Cannon and former President Donald Trump. (@axios / X screen shot)
Judge Aileen Cannon has dismissed the high-profile classified documents case, citing the unlawful appointment of Special Counsel Jack Smith.
This decision comes as a significant blow to the Biden regime and the Department of Justice, raising questions about the integrity of the entire investigation.
In her ruling, Judge Cannon wrote:
Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order [ECF No. 326]. The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution. U.S.
Const., Art. I, $ 2, cl. 2. Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds.
The effect of this Order is confined to this proceeding.
President Trump previously filed a motion to dismiss Jack Smith’s classified documents charges based on the “unlawful appointment and funding of Special Counsel.”
Day one of the expanded evidentiary hearing was held last month.
According to NBC News, President Trump’s lawyers “argued that an officer like the special counsel must be appointed “by law” and that the special counsel should be categorized as a “principal officer” and subject to Senate confirmation. The statutory text cited by the special counsel’s office “does not authorize” the U.S. attorney general’s appointment of the special counsel, his lawyer, Emil Bove, argued.”
Cannon did question whether Attorney General Merrick had any oversight role in seeking the indictment against Trump.
Jack Smith’s prosecutor James Pearce refused to answer and claimed it would be against policy to answer the question.
“Why would there be any heartburn to answer whether the attorney general signed off on the indictment?” Cannon asked.
Recall, Conservative Supreme Court Justice Clarence Thomas questioned Jack Smith’s authority as special counsel in his concurring opinion on the high court’s presidential immunity ruling.
Last month, the Supreme Court ruled 6-3 that Trump has absolute immunity. Former presidents are entitled to at least a presumption of immunity for their official acts.
The Supreme Court ruled that there is no immunity for unofficial acts.
Clarence Thomas questioned Jack Smith’s authority because he was a private citizen when he was tapped as a special prosecutor.
“I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President — he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President,” Clarence Thomas said.
Clarence Thomas argued that no other former US President has been prosecuted for official acts despite numerous past Presidents taking actions that would argue constitutes crimes.
“No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding,” Clarence Thomas wrote.
Thomas also argued that Jack Smith is not senate confirmed (Trump’s lawyers are also using this argument before Judge Cannon).
“The Constitution sets forth how an office may be created and how it may be filled. The Appointments Clause provides: “[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 Department.” Art. II, §2, cl. 2. The constitutional process for filling an office is plain from this text. The default manner for appointing “Officers of the United States” is nomination by the President and confirmation by the Senate. Ibid. “But the Clause provides a limited exception for the appointment of inferior officers: Congress may ‘by Law’ authorize” one of three specified actors “to appoint inferior officers without the advice and con-sent of the Senate.” NLRB v. SW General, Inc., 580 U. S. 288, 312 (2017) (THOMAS, J., concurring). As relevant here, a “Hea[d] of Department”—such as the Attorney General—is one such actor that Congress may authorize “by Law” to appoint inferior officers without senatorial confirmation. Art. II, §2, cl. 2.
Thomas once again reiterated that a special prosecutor must be senate confirmed.
“Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be “established by Law.”1 The Constitution itself creates some offices, most obviously that of the President and Vice President. See §1. Although the Constitution contemplates that there will be “other Officers of the United States, whose Appointments are not herein otherwise provided for,” it clearly requires that those offices “shall be established by Law.” §2, cl. 2. And, “established by law” refers to an office that Congress creates “by statute.” Lucia v. SEC, 585 U. S. 237, 254 (2018) (THOMAS, J., concurring); see also United States v. Maurice, 26 F. Cas. 1211, 1213 (No. 15,747) (CC Va. 1823) (Marshall, C. J.).”
This is a developing story.
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