Judge Cannon Ends Jack Smith’s Lawfare

In late 2022, Biden Attorney General Merrick Garland appointed disgraced federal prosecutor Jack Smith as the special counsel to investigate President Trump. Jack Smith obtained two federal indictments: one in the District of Columbia, and a second in the Southern District of Florida. The Florida indictment charged President Trump with willfully retaining classified information when his presidency ended, in alleged violation of the Espionage Act. President Trump moved to dismiss the indictment on several grounds, including that Jack Smith’s appointment and its funding violate the U.S. Constitution. In a victory for our Constitution, U.S. District Judge Aileen Cannon agreed with President Trump and dismissed the Florida case in its entirety.

Judge Cannon accurately ruled Garland illegally appointed Jack Smith. The law requires Congress’ creation and funding of new offices–and those filling such offices generally must receive Senate confirmation. Garland appointed Jack Smith via administrative fiat, to an office created and funded by administrative fiat, with that office intentionally insulated from political accountability and the day-to-day supervision of a Senate-confirmed officer. The Senate never confirmed Jack Smith to anything. Judge Cannon’s ruling was correct and long overdue.  

Earlier this month, the Supreme Court held in Trump v. United States the President (including Presidents Trump and Biden) is absolutely immune from prosecution for core presidential acts and presumptively immune for other presidential acts. In that case, Justice Clarence Thomas wrote a concurring opinion that questioned the constitutionality of Smith’s appointment. The Appointments Clause of the Constitution requires Presidents appoint officers of the United States by and with the advice and consent of the Senate.

There are two kinds of officers: principal and inferior. Principal officers require Senate confirmation; inferior officers are appointed by the President, courts, or department heads within the Executive Branch if Congress so authorizes. For instance, district judges—lifetime presidential appointees who receive Senate confirmation—appoint magistrate judges, who oversee many misdemeanor cases. Secret Service Director Kimberly Cheatle, who correctly lost her job after the attempted assassination of President Trump, is also an inferior officer: a presidential appointee who does not require Senate confirmation.

In 1999, the Independent Counsel Statute lapsed. This statute serves as the basis for the appointment of, among others, Ken Starr, the leader of the investigation of President Bill Clinton. After the statute’s lapse, Attorney General Janet Reno created regulations authorizing the attorney general, when appropriate, to appoint a special counsel. Citing these regulations, Garland appointed Smith. On July 15, U.S. District Judge Aileen Cannon, following the reasoning of Justice Thomas’s concurrence in the immunity case, granted the motion of Trump and his co-defendants to dismiss the indictment. In doing so, Judge Cannon determined Jack Smith’s appointment violated both the Appointments and Appropriations clauses.

Both clauses are essential in maintaining the separation of powers. This separation ensures the three branches of the federal government cannot intrude on one another. For instance, when a Supreme Court vacancy occurs, the President alone nominates a candidate. The Senate cannot make the President nominate a particular person. The Senate alone decides whether to confirm the nominee. The President cannot force the Senate to confirm the nominee or even hold a vote. If the Senate confirms the nominee, the President alone has the authority to make the appointment of the nominee, who must take the required constitutional and statutory oaths to assume office. In Jack Smith’s case, the special counsel regulations grant him broad powers. Unlike a United States attorney, for instance, Jack Smith isn’t limited to one jurisdiction—say, the Southern District of Florida—in which he can prosecute. Jack Smith indicted President Trump in two jurisdictions, and nothing stops Jack Smith from pursuing indictments in more.

Jack Smith never received a presidential appointment. The Senate never confirmed him. Smith argued that Garland, a principal officer as the head of the Justice Department, lawfully appointed him according to the special counsel regulations which are authorized by several statutes. Judge Cannon rejected this argument, holding that none of the statutes Jack Smith cited authorizes the regulations and the appointment based on those regulations. Garland, in other words, had no statutory authority to appoint Smith, a private citizen vested with the power of essentially all 93 United States attorneys across America.

The Appropriations Clause is also crucial to the separation of powers. Smith’s prosecution of Trump is funded by an indefinite appropriation based on the lapsed Independent Counsel Statute and other laws. The other laws, however, are the ones that Judge Cannon determined do not authorize Smith’s appointment in the first place. Congress possesses the power of the purse. Unless Congress authorizes an expenditure, it is unlawful. Smith spent tens of millions of dollars with no legal authorization for this massive expenditure. He asserted that the Justice Department could appropriate other funds to sustain the prosecution, but he provided no support for this claim.

Jack Smith is a political scud missile. In 2014, he obtained a conviction of former Virginia Governor Bob McDonnell, a potential presidential or vice-presidential candidate for the GOP. The conviction, based on a radical theory of government corruption, met a unanimous demise before the Supreme Court in 2016, 8-0. (But for Justice Scalia’s passing, Jack Smith faced a 9-0 loss.) By this time, however, Jack Smith took Governor McDonnell out of the running for the 2016 election. Just like Merrick Garland brought in Jack Smith to take out President Trump in 2024.

Judge Cannon destroyed the myth of Jack Smith’s appointment. It—and everything that he has done since—is unlawful. Chalk it up as yet another victory for President Trump in his fight against Biden Democrat lawfare.

Mike Davis is the Founder and President of Article III Project.