Garland and Smith Have Themselves to Blame for Outright Dismissal of the Florida Case against Trump

Yesterday, I completed a two-part series on the status of the Biden Justice Department’s prosecution of Jack Smith in Florida — a series that was interrupted, as it were, by Judge Aileen Cannon’s dismissal of the case on the ground that Smith’s appointment was unconstitutional.

While taken aback by the timing, I was not surprised by the ruling (having anticipated it here and here). I have to caveat, though, that Judge Cannon went further than I thought she would. That is, I was convinced she would (and should) hold that Attorney General Merrick Garland’s appointment of Smith violated the appointments clause; but I also figured she would give the Justice Department an opportunity (a) to cure the constitutional defect (which, as I explained yesterday, Garland could easily have done), and (b) salvage the indictment and the enormous amount of pretrial work done in the case since it was indicted over 13 months ago.

Because they’ve insisted on a counterproductive appeal rather than accepting the ruling and curing the defect, I’ve contended that Garland and the Biden Justice Department are being arrogant. I didn’t account for the half of it. Judge Cannon wanted prosecutors to propose an alternative to outright dismissal of the case. They mulishly refused to do it, calculating that the judge would flinch from ruling against them if that meant throwing out the entire case — including all the work Cannon herself had devoted to it.

Judge Cannon explained her ruling in a 93-page opinion that is so extraordinarily thorough and well-reasoned it puts to shame the briefs on the subject filed by Smith and Trump’s defense.

As I argued yesterday, the Justice Department should just accept the ruling and make the few tweaks that would enable it to revive the prosecution in short order. In fact, Garland should have done that at least four months ago, when the issue was raised and then joined by prominent legal scholars, and it thus became foreseeable that (a) DOJ could very well lose, and (b) the constitutional defect was readily curable. Instead, consistent with their unseemly approach to date — namely, to blame all their problems in the case, most of which Smith caused, on Trump-appointee Cannon’s supposed bias and inexperience — Garland and Smith took no precautionary action.

Now in a snit because Cannon ruled against them, Garland and Smith have opted to appeal — an appeal that will take a year or more and that DOJ will probably lose. They can’t bring themselves to make no-brainer, no-heavy-lifting adjustments that could rapidly get the case up and running again. Basically, all Garland would need to do is place Smith and his staff under the supervision of a Biden-appointed district U.S. attorney (most likely, in the Southern District of Florida). The AG won’t do it, though, because (1) it would imply that Cannon’s ruling has persuasive force (which it plainly does), and (2) politically, it would eviscerate the illusion Garland’s unnecessary appointment of Smith was intended to create, namely, that the Biden Justice Department is uninvolved in the prosecution of Biden’s opponent in the presidential election.

It is easy to see the logic that calls for outright dismissal of the case: If Smith’s appointment was ultra vires, then everything he has done since being appointed, including indicting the case, is tainted — end of story.

But is it really that open-and-shut? No. Team Trump came to the appointments-clause issue very late in the game, after eight months of making no objections and treating Smith — in not one but two cases — as if he were the government’s legitimate prosecutor.

The initial Florida indictment in the document-retention case was filed on June 8, 2023. Trump did not formally file a constitutional challenge to Smith’s appointment until February 22, 2024. In the interim, the Washington, D.C., election-interference indictment was filed on August 1. In the Washington case, Judge Tanya Chutkan put the immunity issue on a fast track for briefing. At that point, Trump raised no objection to Smith’s status, even though that issue, like the immunity issue, implicated the legitimacy of the prosecution.

Judge Chutkan denied Trump’s immunity claim on December 1, 2023. Shortly afterward, Trump appealed. Proceedings in the trial court were thus suspended from December 2023 until the Supreme Court finally issued its decision seven months later, on July 1, 2024. At the time Judge Chutkan suspended proceedings, Trump had filed a plethora of pretrial motions. (Lawfare has tracked the docket, here.) But there was no appointments-clause claim.

At the Supreme Court’s April 25, 2024, oral argument on the immunity claim, Justice Clarence Thomas asked Trump lawyer John Sauer whether the defense had challenged Smith’s appointment in the election-interference case. Sauer conceded that the defense team had not yet made that motion. He elaborated that they intended to make the motion but hadn’t gotten to it yet because, with the immunity issue on appeal, Judge Chutkan had no jurisdiction to entertain motions in the case (see pp. 33–34). Yet, as just noted, the Trump defense had made a slew of motions in the election-interference case — just not an appointments-clause motion.

I infer from this that the appointments-clause motion probably had not occurred to them by late 2023. Again, they did not make the motion until February 2024 — in the Florida case. By that time, various legal scholars, most notably including former attorney general Edwin Meese (later joined by former attorney general Michael Mukasey), had signaled an intention to challenge Smith’s appointment in amicus curiae (friend of the court) briefs.

Regardless of what the reason for the delay may have been, the fact is that eight months elapsed after Trump was first indicted in Florida — and four months elapsed after he was indicted in Washington — before Trump’s lawyers finally raised an objection to Smith’s appointment. In the interim, they treated Smith and his staff (several members of which are Justice Department lawyers) as if they were the legitimate representatives of the United States: Trump defense lawyers accepted mounds of government discovery from Smith’s team, accepted the prosecutors’ assistance in getting defense counsel cleared and set up to review classified documents, engaged in extensive negotiations with Smith about scheduling, and litigated an array of issues against Smith — all without questioning the validity of his appointment.

During oral argument on the immunity issue, notwithstanding Justice Thomas’s afore-described question to Sauer about Smith’s appointment, the Supreme Court, too, treated Smith’s team as valid. Of course, in briefing the immunity appeal, Trump had not questioned Smith’s legitimacy — though, to be fair, the narrow question presented was about presidential immunity, not the appointments clause. During oral argument, when a question arose regarding whether a president could pardon himself, Justice Samuel Alito elicited from Smith’s counsel, Michael Dreeben (who had been DOJ’s deputy solicitor general for a quarter century, until 2019), that in presenting the special counsel’s (noncommittal) view on that question, Dreeben was fully authorized to speak for the Justice Department. Neither Trump’s lawyers nor any of the justices questioned that representation. (I’ve previously recounted that exchange; see p. 109.)

In Justice Thomas’s immunity-case concurrence, he stressed that, because of the importance of the question whether the special counsel was “duly authorized” under the Constitution to conduct the prosecution, that “essential question” should be addressed by the trial court at an early stage. That didn’t happen in the Florida case because the defense didn’t raise it for several months. In the interim, a boatload of public resources was poured into the pretrial proceedings. I would not try to put a dollar figure on it, but we can assume such a figure would be staggering.

I thus assumed Judge Cannon, rather than flush the whole case, would give the Justice Department an opportunity to address the defects — perhaps a continuance for Smith to (a) supersede the indictment under the supervision of a district U.S. attorney, and (b) demonstrate that there would be no prejudice to the defense if prior rulings and in-court proceedings in the case should stand, on the theory that Trump had waived an appointments-clause challenge to those rulings and proceedings by failing to lodge a timely objection. I believe the Justice Department would have had a strong argument along those lines.

Reading Cannon’s opinion (at pp. 81–82), it appears that’s exactly what she hoped and expected that Smith and the Justice Department would do. She writes:

Special Counsel Smith opposes Defendants’ request on the merits but fails to propose any alternative form of relief or to respond on the substance of the remedial question [see special counsel submission, which Cannon quotes:] (“Because the Special Counsel is an officer authorized to carry out the prosecution in this case, the Court has no reason to consider whether the Special Counsel action’s to date are ‘salvageable’ under the De Factor [sic] Officer doctrine.”) [Citations to docket omitted.]

At that point, Cannon drops a footnote (no. 61), in which she details Smith’s haughty approach of implying that it was inconceivable that the court could be “seriously entertaining” the defense claim, and scoffing — as if the remedy issue were not already on the table — that it would be the court’s responsibility to propose more briefing on the remedy if the judge dared to grant the motion:

Insofar as the Special Counsel may argue that additional briefing on remedy is warranted, the Court explains the record and notes the Special Counsel’s full and fair opportunity to brief the matter of remedy. This action presents a challenging array of issues, almost all of which are resolutely contested; the parties require no prompting before objecting, opposing, and otherwise engaging in “spirited” exchanges. With respect to the instant Motion itself, both the Special Counsel and Defendant Trump submitted briefing; amicus briefs were received; and a lengthy hearing occurred. Yet startlingly, the Special Counsel submitted nothing on the topic of the proper remedy for the Appointments Clause issue, despite challenging dismissal as a remedy in the Appropriations Clause context…. Instead, counsel for the Special Counsel remarked at the hearing, in response to a question about remedy in the Appropriations Clause context, that: “to the extent that the Court is seriously entertaining the notion that there is a constitutional or funding problem, I actually think it would behoove the Court and the parties to have some additional briefing[.]” [Citations to docket omitted.]

This is indefensible. It is also incumbent on the parties in litigation, especially the government, to address what is to be done depending on how the court rules. Smith and the Biden Justice Department instead presumed that, with all their lawyer-Left friends lobbying the Eleventh Circuit to remove her from the case, and all their pals in the commentariat smearing her (as summarized here), Judge Cannon would lack to fortitude to rule against them. They wagered that she’d never dismiss the case if they didn’t propose an alternative . . . so they didn’t propose an alternative.

That is not how the Justice Department normally conducts itself. Arrogance may not be a strong enough word to describe it. The case did not need to be dismissed. All Attorney General Garland had to do was make a few adjustments in the chain of command, and all Jack Smith had to do was marshal a waiver argument. But they stubbornly resisted, and their hubris has bought them an outright dismissal after 13 months of burning through public resources.