On July 15, the national news outlet CBS news posted on the internet the following news report entitled “Trumps Document Case Dismissed by Federal Judge” written by CBS news reporters Mellissa Quinn and Robert Leguere. Following is the report which has been edited for brevity by deleting sections, photos with captions added or highlighted:
“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, who was appointed to the bench by Trump, 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.
Judge Aileen Cannon wrote:
“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. … 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.
Smith’s office did not immediately respond to a request for comment. CBS News has also reached out to attorneys for the former president and Nauta.
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. Trump wrote:
Continue watchingRep. Jason Smith shares his thoughts on Trump assassination attempt, RNCafter the ad
“Let us come together to END all Weaponization of our Justice System, and Make America Great Again!”.
An attorney for De Oliveira, the Mar-a-Lago property manager, said this 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.”
The Justice Department [has already annpunced it intends to] appeal the decision to the U.S. Court of Appeals for the 11th Circuit, and the dispute could eventually land before the U.S. Supreme Court.
… .
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. Cannon wrote:
“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?. … After careful study of this seminal issue, the answer is no.”
Judge Cannon 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. Cannon wrote:
“The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. … 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 APPOINMENTS
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.” Cannon wrote:
“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. … 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.
DELAY, DELAY, DELAY
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.
The links to the relied upon and quoted news sources are here:
https://www.cbsnews.com/news/trump-documents-case-dismissed-by-federal-judge/
ADDITIONAL KEY TAKEAWAYS
On July 15, CNN published on line a news article entitled “Takeaways from the dismissal of the mishandling classified documents case against Donald Trump” written by CNN staff reporters Devan Cole, Marshall Cohen and Hannah Rabinowitz. Following are key takeaways reported and edited for brevity with highlights:
CANNON SAYS SMITH’S FUNDING WAS ALSO UNLAWFUL
Cannon sided with Trump in his other major contention against Smith’s appointment as well – that the special counsel should not be receiving indefinite financing to support his prosecution.
Trump’s assertion was rooted in the Appropriations Clause of the Constitution. He argued that Smith’s funding cannot come from the Treasury unless it has been appropriated by an act of Congress. Cannon wrote:
“For more than 18 months, Special Counsel Smith’s investigation and prosecution has been financed by substantial funds drawn from the Treasury without statutory authorization, and to try to rewrite history at this point seems near impossible. … The Court has difficulty seeing how a remedy short of dismissal would cure this substantial separation-of-powers violation, but the answers are not entirely self-evident, and the caselaw is not well developed.”
The appropriation reserved for independent prosecutors doesn’t apply to Smith because he is not sufficiently independent from the Justice Department, she said.
She noted that as of September 2023, Smith’s direct expenditures exceeded $12.8 million. He would have access to additional funds until the end of his investigation.
Cannon left open a potential pathway in her ruling for the classified documents case to be revived.
The Justice Department “could reallocate funds to finance the continued operation of Special Counsel Smith’s office,” she wrote, but said it’s not yet clear whether a newly-brought case would pass legal muster.
Prosecutors told Cannon in a hearing last month that the Justice Department was “prepared” to fund Smith’s cases through trial if necessary.
Smith’s team could also appeal the ruling, though any appellate challenges would make a pre-inauguration trial almost certainly out of reach.
LEANING ON CLARENCE THOMAS
The ruling comes exactly two weeks after Justice Clarence Thomas publicly aired similar doubts about the constitutionality of Smith’s appointment in a concurrence the conservative jurist penned in the blockbuster case granting the former president partial immunity.
Cannon leaned on Thomas’ concurrence in her ruling Monday, repeatedly quoting from part of it as she explained her decision to throw out the documents case.
In that matter, Thomas sided with Chief Justice John Roberts and the court’s other conservatives in giving Trump some presidential immunity. But Thomas wrote separately to raise questions about whether Garland violated the Constitution when he appointed Smith as special counsel, an argument that wasn’t made by Trump’s attorneys before the trial-level judge overseeing that criminal case.
Justice Thomas wrote in his concurrence in the election case:
“There are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. … The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”
Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center said this:
“It’s hard to imagine that Justice Thomas wrote his concurrence, which addressed an issue that was not before the Supreme Court, with no awareness that it would be used this way.”
RULING IS AN OUTLIER THAT EMBRACED A LONGSHOT THEORY
The ruling from Cannon is an outlier that embraced a longshot legal theory that plenty of other judges have already rejected during previous special counsel investigations.
President Joe Biden’s son, Hunter Biden, attempted earlier this year to throw out his criminal cases based on the same theory that Trump brought before Cannon. (He is being prosecuted by a separate special counsel, David Weiss.) Federal judges in California and Delaware rebuffed his arguments, and federal appeals courts in both jurisdictions refused to get involved.
And during the Trump-Russia investigation, multiple Trump allies similarly attempted to derail special counsel Robert Mueller’s work. But multiple federal judges in Virginia and Washington, DC, upheld Mueller’s appointment.
Still, with all this history, Cannon held a hearing on the issue several weeks ago, pushing attorneys to explain exactly how Smith’s investigation into Trump was being funded.
The judge’s questions were so pointed that special counsel attorney James Pearce argued that even if Cannon were to throw out the case due to an appointments clause issue that the Justice Department was “prepared” to fund Smith’s cases through trial if necessary.
SMITH HAS DOJ OVERSIGHT, DESPITE CANNON’S CLAIMS
In the ruling, Cannon claimed Smith was operating “with very little oversight or supervision.”
She noted that, during last month’s hearing, “the Special Counsel refused to answer the Court’s questions regarding whether the Attorney General had played any actual role in seeking or approving the indictment in this case.”
The federal regulations that govern the special counsel’s office require Smith to coordinate some of his activities with Justice Department leadership. At the hearing, Smith’s team “appeared to acknowledge some degree of actual oversight consistent with the Regulations,” Cannon said. But their tight-lipped answers were clearly not enough to satisfy the judge – and she pointed out that they “resisted” to offer details.
Months before Smith was appointed, the investigation escalated in tremendous fashion in August 2022, when FBI agents raided Mar-a-Lago. The court-approved search turned up troves of documents with classification markings, as prosecutors suspected. Garland later said he “personally approved the decision to seek a search warrant,” indicating his hands-on involvement in at least one critical decision in this long-running investigation.
At a congressional hearing last month, Garland said he didn’t regret appointing Smith. Under questioning from GOP lawmakers, Garland noted that past judges upheld the legality of Mueller’s appointment during his investigation and that the question “has been adjudicated.”
MAJOR LEGAL QUESTIONS LEFT UNANSWERED
Cannon suggested in her ruling that she was leaving some of Trump’s major points in his appropriations clause challenge for review by an appeals court.
One of the arguments that Trump raised was that Smith’s appointment gave him a significant amount of power without the oversight of Congress. Former Attorney General Edwin Meese and Citizens United argued the same, writing that Smith’s appointment “severely undermines” the constitutional order.
Cannon wrote in her ruling that the issue was “a point worthy of consideration given the virtually unchecked power given to Special Counsel Smith under the Special Counsel Regulations.” She wrote:
“Ultimately, however, after examining the broad language in Supreme Court cases on the subject—and seeing a mixed picture, even if a compelling one in favor of a principal designation—the Court elects, with reservations, to reject the principal-officer submission and to leave the matter for review by higher courts,”
DINELLI COMMENTARY AND ANALYSIS
The dismissal of the case was very predictable from the get go seeing as that U.S. District Judge Aileen Cannon was appointed by Trump and she has constantly shown biasness against the Department of Justice with her rulings as it prosecuted Trump. She had no business being assigned the case and Special Prosecutor Jack Smith made the mistake not arguing she had the ethical obligation to recuse herself from the case because Trump appointed her. Smith made the mistake likely believing that Cannon could be fair and impartial.
The Department of Justice announced that the decision by U.S. District Judge Aileen Cannon will be appealed. It may eventually be overturned by the appellate court, but that will take months. The ruling guarantees that there will be no trial before the November 5 election, which in all likely was Cannon’s game plan all along. Though the case had long been stalled, and the prospect of a trial before the November election was already nonexistent.
Simply put, Judge Cannons’ dismissal of the case against Trump is a disgrace. It does a disservice to our federal criminal justice system that places Trump above the law. The decision is a genuine miscarriage of justice by Federal Judge Cannon who went out of her way and who engaged in judicial activism to create grounds for a dismissal that are dubious at best and rejected by other federal courts.
The ruling from Cannon is an outlier that embraced a longshot legal theory that over many decades other federal judges rejected during previous special counsel investigations. A federal statute enacted by congress gives the Attorney General the authority to make appointments of special councils. Rather than follow judicial precedent, Cannon chose to follow the guidance of extremist right wing Justice Clarence Thomas that he gave in the presidential immunity case.
What we have now is a right wing political Judicial Branch of government consisting of hundreds of Trump appointed disciples like Judge Aileen Cannon Cannon and the 6 conservative US Supreme Court Republican Trump disciples of John G. Roberts, Jr., Clarence Thomas, Samuel A. Alito, Jr. Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett who will continue do whatever they can to find Trump is above the law and willing to please and to carry out the Trump political agenda.
The 6 appointed Republican US Supreme Justices have already made a profound difference with their right wing Republican Judicial Activism. The 6 Republican United State Supreme Court Justices have issued 6 major decisions that confirm it has become a far-right wing activist court. The 1st was the court’s seriously considering an attempt to empower legislatures with exclusive authority to redraw congressional districts without court intervention. The 2nd struct down decades of affirmative action in college admissions. The 3rd ruled that a Christian business owners can discriminate and withhold services to the LGBTQ+ community based on religious grounds. The 4th invalidated President Joe Biden’s student loan debt relief plan. The 5th strips federal government agencies of all regulatory power and mandates court approval of rules and regulations. The 6th and most controversial is the Supreme Court reversing Roe v. Wade and 50 years of precedent and denying a woman’s right to choose an abortion and leaving it up to the state’s.
As the saying goes, elections have consequences. The 2024 presidential election is again shaping up to be one of the most consequential elections in our history where Supreme Court decisions will be on the ballot as well as the control of congress, not to mention our basic right to vote in an election and the Presidency.
A story has been told and retold about founding father Benjamin Franklin. Franklin was walking out of Independence Hall after the Constitutional Convention in 1787, when someone shouted out, “Doctor, what have we got? A republic or a monarchy?” To which Franklin supposedly responded, “A republic, if you can keep it.”