If you’ve been keeping up with the plethora of litigation involving former president Donald Trump, you’ll know that he has faced legal scrutiny over allegations related to the handling of classified documents after his presidency. About a year ago, he was indicted on federal charges, including willful retention of national defense information, obstruction of justice, and making false statements. The case centers around claims that Trump improperly retained classified documents after leaving the White House and allegedly obstructed efforts to retrieve them.
Federal prosecutors were just getting the trial process started against Trump when a wrench was thrown by the defense. It involved the appointment of the “special counsel,” the person who was prosecuting Trump in this case. And it resulted in the entire case against the former president getting dismissed.
What Is a Special Counsel?
In U.S. federal law, a Special Counsel is a lawyer appointed to investigate (and, if necessary, prosecute) special cases. These could be cases that involve high-ranking government officials, sensitive national security matters, or other complex and potentially politically charged issues. They are often used when there is a conflict of interest (or the appearance of one) within the Department of Justice (DOJ). They have the authority to conduct an independent investigation, gather evidence, and make prosecutorial decisions without being influenced by the DOJ or other government agencies.
The Special Counsel is typically appointed by the Attorney General of the United States. They are often chosen for their expertise in a particular area of law or their experience in handling complex, high-profile cases. The most well-known example of a Special Counsel is probably Robert Mueller, who was appointed in 2017 to investigate Russian interference in the 2016 presidential election and potential links to the Trump campaign.
The Special Counsel operates independently of the DOJ and is not subject to the day-to-day supervision of the Attorney General or other DOJ officials. They have the authority to make decisions about the investigation, including whether to bring charges, without needing approval from the DOJ. While the Special Counsel has significant autonomy, they are still accountable to the Attorney General and Congress, and must comply with relevant laws, regulations, and DOJ policies.
Trump Challenges Appointment of Special Counsel
Trumps’ attorneys filed a motion to dismiss the case in a Florida federal court, challenging the legality of Special Counsel Jack Smith.
Smith was appointed to Special Counsel by Attorney General Merrick Garland in 2022, for the purpose of overseeing two criminal investigations that were happening at the time. One was the investigation into whether there was unlawful interference with the transfer of power following the 2020 presidential election or with the certification of the Electoral College shortly after the election. The second was the investigation into classified documents and other presidential records taken from the White House to Trump's Mar-a-Lago residence, as well as the possible obstruction of that investigation.
Trump’s lawyers challenged Smith’s legitimacy as Special Counsel on several grounds, primarily arguing that his appointment was illegitimate under the Constitution and federal law.
They first argued to the court that the appointment of a special counsel violates the Constitution's Appointments Clause, which requires principal officers to be nominated by the President and confirmed by the Senate. They claim that Smith's appointment bypasses this process. The Appointments Clause is found in Article II, Section 2, Clause 2 of the United States Constitution. It states:
"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
This clause outlines the process for appointing high-ranking government officials and allows for the appointment of "inferior officers" by the President, courts, or department heads.
Secondly, Trump’s lawyers challenge Smith’s appointment under a different part of the Constitution: the Appropriations Clause. This clause prohibits any money from being “drawn from the Treasury” unless such funding has been “appropriated” by an act of Congress.
Trump's team argued that the Attorney General, Merrick Garland, did not have the authority to appoint Smith. So, they asked the judge to dismiss the case based on that.
Judge Rules Smith Unlawfully Appointed
The main question that comes up for the court in the challenge is whether there a statute in the U.S. Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? Florida-based federal district judge Aileen Cannon decided the answer was “no.”
She concluded that none of the list of federal statutes that U.S. attorneys cited as legal authority for the appointment gives the Attorney General “broad inferior-officer appointing power,” nor does any statute give him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. “Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise,” she wrote.
As such, she concluded that Smith was unlawfully appointed in the first place. And that meant that the entire case against Trump regarding the classified documents would have to be dismissed.
A Loose Cannon?
The Florida judge seems to be flying in the face of her judicial peers. Prosecutors pointed out that eight other federal judges had unanimously ruled the opposite: that attorneys general do have the power to appoint special counsels. This includes the U.S. Supreme Court. But Judge Cannon didn’t seem to put much importance on that, calling the relevant part of the Supreme Court decision "dicta". Instead, she relied almost entirely on a concurrence Justice Thomas wrote in Trump v. United States, which no other justices joined.
Although the judge’s ruling came as a shock to many, it may not be entirely surprising given her history. Trump himself appointed Cannon to the bench in 2020. When this case was first assigned to Judge Cannon last year, two other judges in her federal district had privately urged her to decline it. Besides the appearance of potential favoritism toward Trump, Judge Cannon did not have a ton of trial experience. But she chose to keep the case.
Once on the case, the judge indefinitely delayed the trial, which was supposed to start in May. She also hindered the federal probe when she ruled that prosecutors were required to run the documents seized at the Mar-a-Lago raid through a third party before they could use them in the case against Trump. The Atlanta-based 11th Circuit Court of Appeals soon overturned that last one, though.
U.S. Attorneys have already appealed the Florida judge’s decision. Smith’s office filed a notice that it intended to ask the 11th Circuit to revive the case and reverse the Florida judge’s ruling that he was unlawfully appointed. Smith’s spokesman commented that the dismissal of the Trump case “deviates from the uniform conclusion of all previous courts to have considered the issue that the attorney general is statutorily authorized to appoint a special counsel.”
Related Resources:
- Why a Conviction Is Not the End of Trump's Hush Money Payment Trial (FindLaw's Courtside)
- The Appointments Clause (FindLaw's U.S. Constitution)
- Prosecutor's Flubbing of Evidence Sets Alec Baldwin Free (FindLaw's Courtside)
