Sayonara Trump Documents Case as Biden DOJ Appeals Invalidation of Smith Appointment and Dismissal of Indictment

As promised, the Biden-Harris Justice Department and its special counsel, Jack Smith, have appealed Judge Aileen Cannon’s dismissal of the Mar-a-Lago documents indictment against Trump.

In a scholarly 93-page opinion last month, Judge Cannon, of the federal district court in south Florida, held that Attorney General Merrick Garland’s appointment of Smith violated the Constitution’s appointments clause. While the Biden-Harris DOJ postures as if Cannon, a Trump appointee, is simply in the tank for the former president, her construction of the clause echoes that adopted by Supreme Court Justice Clarence Thomas in his immunity-case concurrence, as well as the views of former attorneys general Ed Messe and Michael Mukasey, among other solid constitutional scholars.

In a nutshell, Garland’s appointment made Smith at least the equal of a district United States attorney. To wield such supervisory prosecutorial authority, one must qualify as an officer of the United States. Under the appointments clause, there are only two ways to do that — either nomination by the president and confirmation by the Senate, or appointment to a position created by congressional statute and in conformity with whatever qualifications Congress therein mandates (usually, Senate confirmation after nomination by the president or a high-ranking officer).

Smith fulfills neither condition. He was appointed under a dubious set of regulations promulgated by the Clinton Justice Department in the late Nineties, after Congress let its independent-counsel statute expire.

As Rich and I discussed on the podcast, and as I reiterated in my weekend column, the Constitution does not authorize the attorney general to create an officer of the United States position, notwithstanding the broad authority that Congress has vested in the AG to assign Justice Department officers to cases.

In its brief, Smith and the DOJ attempt to string together an array of statutes that don’t actually endow the AG with appointment authority (as Justice Thomas opined in analyzing them in his aforementioned concurrence). Between that and some passing, ill-considered dicta in United States v. Nixon (1974), prosecutors ask the Eleventh Circuit to deduce that Garland has appointment authority and, hence, to reverse Cannon.

As I’ve opined (here and here), Garland and Smith are being stubborn and have only themselves to blame for the dismissal of the Florida indictment. Judge Cannon asked them to propose curative measures that could have obviated the dismissal remedy. They could have gotten the case up and running again in minutes if Garland had simply transferred Smith and his staff to work under the supervision of the Biden-appointed U.S. attorney for the Southern District of Florida, who was confirmed by the Senate before taking that position. Instead, they refused that reasonable step, daring Cannon to dismiss the indictment (apparently convinced that the Lawyer Left’s character assassination of the Trump appointee would intimidate her). With Garland refusing the easy cure, Cannon was left with no choice but to dismiss.

Smith had argued that he was adequately credentialed because, as the regulations prescribe, he reports to Garland. This, of course, created a political headache for the Biden-Harris administration because Garland had told Congress he was not interfering with Smith, much less supervising him. Indeed, Smith was appointed only as an artifice enabling the DOJ and the Biden campaign to claim that Biden and his AG had nothing to do with the prosecution of Biden’s (now, Harris’s) Republican opponent in the 2024 election.

There was no basis in the regulations to appoint Smith because there was no conflict of interest in the Biden-Harris Justice Department’s investigation of Trump. That’s why the Biden-Harris DOJ was investigating Trump for nearly two years before Garland’s politically minded appointment of Smith. (During that period, Garland steadfastly refused to appoint a special counsel to investigate Hunter Biden and the Biden-family influence-peddling scheme, as to which the Biden-Harris DOJ had a neon-flashing conflict of interest.)

Smith remains the special counsel prosecuting Trump in Washington, D.C., federal court on the 2020 election-interference indictment. As I’ve explained, a Trump appointments-clause motion has not yet been litigated in that case. When that happens, it is certain to be rejected by Judge Tanya Chutkan. That’s not because Judge Chutkan is an Obama appointee; regardless of whether she is persuaded by Cannon’s opinion or Smith’s counterarguments, Chutkan is bound by the precedents of the D.C. Circuit, which has rejected an analogous claim (in connection with the Russia-collusion special-counsel appointment of Robert Mueller, which was also under the DOJ’s regulations, not a statute).

To repeat my prediction, I believe that if these cases go forward, the Eleventh Circuit will uphold Cannon’s ruling, and the D.C. Circuit will uphold Chutkan’s eventual ruling (reaffirming its prior ruling with respect to Mueller). Such a conflict in the circuits would lead to a final adjudication of the issue by the Supreme Court — a majority of which, I believe, would be persuaded by Cannon’s ruling (and the opinion of Justice Thomas).

Consequently, I continue to believe it was foolish for Garland and Smith to go the appeal route. If the situation plays out, they are likely to lose.

On the other hand, the situation may not play out. If Trump wins the election, he will fire Smith, and his Justice Department will dismiss the Washington indictment. That may result in its own drama: If Democrats win the House, they could impeach Trump over such a dismissal; if they win the Senate, they could try to make a promise to allow the Trump prosecutions to proceed a condition of confirming any Trump-nominated AG; and Judge Chutkan could follow the (lawless) model of her D.C. district court colleague, Judge Emmett Sullivan, who in 2020–21 blocked the Trump Justice Department from dropping the criminal case against Michael Flynn (the retired general who, briefly, was Trump’s national-security adviser).

Of course, if Vice President Harris wins the presidency, the prosecutions of Trump will have new life. If that happens, it would not surprise me if a Harris-Walz DOJ pulls the plug on the appeal of Cannon’s ruling. The case — with or without Smith — could be transferred to a Harris-appointed U.S. attorney, who could (a) reindict the case without the appointments-clause complications, and (b) pare down the prosecution to an obstruction case, as Smith should have done, avoiding more years of delay while classified-information and immunity issues are litigated in the courts. (I’ve discussed that here and here.)

My two cents: If Harris wins, she and the country would be better off dropping the lawfare crusade — consistent with her claim to be the fresh young president for a new generation (she’s about to be 60) who will move the country forward, beyond the Trump and Biden eras. But I wouldn’t be holding my breath.