Federal Judge Dismisses Jack Smith's Florida Prosecution of President Trump

Justice Thomas, in his concurrence in the U.S. Supreme Court’s recent immunity decision, has stated that “[f]ew things would threaten our constitutional order more than criminally prosecuting a former President for his official acts. Fortunately, the Constitution does not permit us to chart such a dangerous course.” Of great importance, Justice Thomas wrote separately to highlight another way in which the federal government’s prosecution of the former President arguably violates America’s constitutional structure. More specifically, Justice Thomas argues that the U.S. Attorney General’s appointment of a private citizen as Special Counsel to prosecute the former President likely violates Article II, Section 2, Clause 2 of the Constitution.

Quite consistent with Justice Thomas’ view, Judge Aileen Cannon has just dismissed Special Counsel Jack Smith’s prosecution of Donald Trump in the Florida classified documents. Judge Cannon fully agrees with Donald Trump’s contention that Attorney General Merrick Garland’s appointment of Jack Smith violated the Constitution on two grounds.

First, the appointment violates the Appointments Clause of the United States Constitution because the Special Counsel failed to go through a congressional confirmation process as required by Article II, Section 2, Clause 2 of the U.S. Constitution. The Appointments Clause provides the exclusive means for the appointment of “Officers of the United States.” It sets as a default rule that all “Officers of the United,” whether “inferior” or “principal,” must be appointed by the President of the United States and confirmed by the Senate. In this case, Jack Smith, as an inferior officer, was solely appointed by Attorney General Garland without being confirmed by the U.S. Senate.

Second, Judge Cannon agrees with Donald Trump’s claim that Jack Smith’s appointment violated the Appropriations Clause, U.S. Const. Art. I Section 9, Clause 7. This provision of the Constitution prohibits the expenditure of any funds unless such funding has been appropriated by an act of Congress.

Taken together, former President Trump raised the following challenge: “Is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution?” Consequently, after carefully considering both the law and the facts of Jack Smith’s prosecution, Judge Cannon could not find a statutory basis for either Smith’s appointment or his expenditure of federal funds. Judge Cannon found that none of the statutes cited by Jack Smith gives the Attorney General broad inferior-officer appointment power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power and discretion wielded by Special Counsel Smith.

So what is the bottom line? 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. 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 nation’s separation of powers.

This decision by Judge Cannon is consistent with the constitutional position of the American Center for Law and Justice (ACLJ). After all, we have always supported the rule of law and limited government. Contrary to the approach taken by Attorney General Garland and Special Counsel Smith, the ACLJ believes that the Executive branch of government’s power is cabined by the Constitution rather than the whim of the Executive branch.

We welcome Judge Cannon’s decision limiting the Attorney General’s authority to appoint a private citizen who has not been confirmed by the U.S. Senate. Such appointments must go through the confirmation process.

Join us in supporting the U.S. Constitution and the rule of law.