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The ruling in this case moves the needle on the likelihood of Trump facing trial again before November’s election from “highly unlikely” to “basically impossible.”
Florida U.S. District Judge Aileen Cannon issued an astonishing yet unsurprising decision on Monday throwing out the Justice Department’s prosecution of former President Donald Trump for withholding and mishandling classified documents after his presidency.
The case concerns allegations that Trump was personally involved in unlawfully retaining sensitive governmental documents and transferring them to his residences, rather than the National Archives, and that he refused official demands to return the documents. The indictments include transcripts of recordings in which Trump allegedly showed classified military attack plans to a writer and book publisher in order to disprove a military general’s public suggestions that Trump wanted to start a war with Iran.
Cannon ignored clear precedents from the U.S. Supreme Court and other lower federal courts and instead held that the government’s long-standing practice of appointing an independent “special counsel” to oversee politically charged investigations of the executive branch is unconstitutional.
The ruling, which came down on the first day of the Republican National Convention, moves the needle on the likelihood of Trump facing trial again before November’s election from “highly unlikely” to “basically impossible.” Trump is expected to try to quash the multiple prosecutions against him if he does win the presidency in November. In any event, it’s now almost certain that Trump won’t face a trial in this case or in any of the others until after 2024; and, all things considered, the prospects of a meaningful sentencing penalty against a former president and multimillionaire in his early eighties who was recently granted an unprecedented breadth of immunity for acts in office stands at slim to none.
Cannon, a Trump appointee, has become well known precisely because of a series of remarkable rulings in which she inexplicably accommodated the former president’s legal positions, no matter how baseless or absurd. Her apparent bias in the classified documents case is clear enough that it prompted at least two of her more experienced colleagues, including the chief judge of the Southern District of Florida, to ask her to consider declining the case (she refused). In sum, Cannon is famous for being the most transparently partisan and Trumpist judge to have heard a case against the former president.
She wrote in the ruling on Monday that the Supreme Court’s previous analysis of the issue was not binding precedent, but mere “dicta”—the asides and tangential points courts necessarily make in order to explain a legal ruling, but aren’t meant as actual statements of the law.
Congress has explicitly laid out procedures for special counsel appointment, in sweeping language.
Her decision also relied on a separate concurring opinion penned by Justice Clarence Thomas in a recent ruling that granted Trump and other presidents near-absolute immunity—even though Thomas’s position was actually nonbinding in and of itself, because it wasn’t joined by any of the other eight justices. Thomas’s concurrence argued that special counsels must be established through congressional action, rather than appointed by the attorney general, and it was widely viewed as a signal to Cannon and a pathway to follow in order to exonerate Trump from the moment it was released.
Special counsel Jack Smith said on Monday that he will appeal Cannon’s ruling.
The special counsel model is meant to avoid political targeting and to insulate the DOJ from the appearance of bias. They were used to probe allegations involving former President Richard Nixon in relation to the Watergate scandal, former President Ronald Reagan’s administration in relation to the Iran-Contra scandal, and former President Bill Clinton’s administration in relation to Whitewater—which led to the Monica Lewinsky scandal. And courts have upheld special counsel investigations as lawful as recently as 2019, with regard to the appointment of former special counsel Robert Mueller to investigate links between the Russian government and Trump’s 2016 presidential campaign.
Nixon attempted to challenge the special prosecutor’s authority during Watergate, but the Supreme Court rejected those arguments. Every other federal court that has squarely considered the question has also found that the attorney general does have legal authority to appoint a special counsel.
Indeed, Thomas’s concurrence is nonsensical—Congress has explicitly laid out procedures for special counsel appointment, in sweeping language. Federal law says that the attorney general “or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal.”
Supreme Court precedent is also clear. In U.S. v. Nixon in 1974, the justices wrote that “Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.”
Cannon concluded that the sentence is dicta, but in fact, that statement is a foundational part of the ruling: A decision that Nixon was obligated to turn over subpoenaed materials would fall apart if the appointment of the special counsel demanding the materials was unconstitutional in the first place. Indeed, the issue of whether the attorney general could appoint a special counsel at all didn’t get much discussion simply because Nixon and his attorneys (and everyone else) believed the answer was so clear that it wasn’t worth contesting.
Cannon’s ruling will be appealed to the 11th Circuit Court of Appeals, which has previously issued an unusually strong reprimand against her in this same dispute, writing that Cannon “abused her discretion” when she acquiesced to certain delay tactics from Trump’s team.
The 11th Circuit could very well overturn Cannon’s decisions. Still, that would simply be a sort of reset in the long-running litigation (Trump’s attorneys have also raised an immunity defense, which wasn’t addressed in Monday’s ruling). And, in any case, the government’s and the public’s interests in the myriad cases against Trump have already been largely thwarted: Trump will not face a jury of his peers in any of the remaining cases before November’s election; he has broad immunity for much of his apparent and most serious crimes in office, even potentially including the attempted overthrow of the government; and, even if he is convicted, history and all evidence thus far suggests that judges (let alone a Trumpist judge like Cannon, or right-wing justices like Thomas et al.) will be reluctant to levy serious criminal punishment against a former president who also happens to be in his early eighties, regardless of the facts.
