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Special Counsel Jack Smith makes a statement to reporters about the 37 federal charges returned by a grand jury in an indictment of former U.S. President Donald Trump on charges of unauthorized retention of classified documents and conspiracy to obstruct justice as Smith speaks at his offices in Washington, U.S. June 9, 2023.
Why did a federal judge just dismiss Trump’s classified documents case?
Donald Trump has just received some very welcome news: Aileen Cannon, the federal judge overseeing the indictment alleging that Trump took classified documents when he left office, has just thrown out the case.
Cannon, a federal judge appointed by Trump, ruled that the appointment of special counsel Jack Smith violated the Appointment Clause of the Constitution because he was not appointed by the president or confirmed by the Senate. Her decision goes against the post-Watergate precedent that upheld the legality of independent prosecutors.
The idea that Smith, who was appointed by Attorney General Merrick Garland, was unconstitutionally appointed was initially raised in the recent Supreme Court decision giving the president substantial immunity from criminal prosecution. Justice Clarence Thomas encouraged “lower courts” to look into the “essential questions concerning the special counsel’s appointment.”
What does the constitution say: The Appointment Clause says that the president and the Senate have the power to appoint “Officers of the United States” but that Congress may allow “inferior officers” to be appointed by “the heads of departments,” like the Attorney General.
So the discrepancy is whether the special council is considered an inferior officer and whether, as Thomas wrote, his appointment was valid “unless a statute created the special counsel’s office and gave the Attorney General the power to fill it.”
Smith will inevitably appeal, but the decision means that Trump has overcome another major legal threat – and this one on the first day of the Republican National Convention, where he is set to formally become the party’s nominee for president.
Podcast: Trumped up charges? The law & politics of investigating a president's crimes
Listen: Where democracy is built upon the principles of rule of law, legal challenges faced by public officials are a sober matter. On the GZERO World podcast, Ian Bremmer sits down with former US Attorney for the Southern District of NY and podcast host, Preet Bharara. Together, they explore the current state of the US legal system, the hurdles for keeping public officials to account, and the potential implications for democracy when a former president is criminally charged by federal courts. Bharara draws from his extensive experience as a prosecutor to offer insightful perspectives on pressing legal concerns, including the role of executive privilege in government accountability. The duo also takes a deep dive into news headlines, addressing the ethical dilemma surrounding Supreme Court Justice Clarence Thomas and the ongoing Department of Justice investigation into the Ukraine leak.
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