Judge #Aileen M. #Cannon’s stunning dismissal this week of the most serious charges faced by Donald Trump put her on shaky legal ground, according to experts,

who say she is on track to be reversed on appeal
and could even be removed from the case
— an extraordinary, but not unheard of step.

Because of the political calendar, however, any legal repercussions could be short-lived.

Trump’s alleged mishandling of classified national security records and obstruction of government efforts to retrieve the material
may not matter if the former president and current Republican nominee is elected in November.

If he gets back to the White House, Trump could pressure his Justice Department to close the case.

He could also promote Cannon to the very appeals court that will soon examine her decision to toss the case.

Cannon’s finding that special counsel #Jack #Smith was improperly appointed by Attorney General Merrick Garland to investigate Trump
conflicts with numerous past court decisions and the nation’s long history
— during both Democratic and Republican administrations
— of allowing #independent #prosecutors to handle high-profile instances of alleged wrongdoing.


️Smith has filed notice of his plans to appeal to the U.S. Court of Appeals for the 11th Circuit,
which reviews decisions from the Florida district where Cannon,
a relatively inexperienced judge appointed by Trump in 2020, sits.

️The court has already rebuked her twice for her handling of other aspects of the classified documents case,
sending what Yale Law School professor Akhil Amar described as a message that her decisions had been “way out of line.”

The question now, Amar said, is
how quickly and dramatically the appeals court acts on the latest ruling,
which dismissed the entire indictment for Trump and his two co-defendants.

“They may not want to stick their head in a #buzz #saw if they can just let the case take its slow, deliberative course,” he said.

In her 93-page decision, Cannon said there is no specific statute authorizing the attorney general to appoint a special counsel.

She also said the Constitution requires someone with Smith’s authority to be confirmed by the Senate.

The judge acknowledged the tradition of special-attorney-like figures in moments of political scandal involving high-level government officials,
from #Watergate to #Iran-#contra to Russia’s attempts to #interfere in the 2016 election.

But Cannon said the practice of appointing such independent prosecutors has been inconsistent and based on a “spotty historical backdrop.”

Smith, she wrote, is “a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision.”

Conservative legal groups have long questioned the constitutionality of special counsel appointments.

Cannon repeatedly cited Justice #Clarence #Thomas, who raised the issue in a solo opinion this month as part of the Supreme Court’s decision granting Trump broad immunity from prosecution for official acts.

That Supreme Court case focused on Smith’s separate election interference prosecution of Trump in D.C.

She also embraced the arguments in a law review article by #Gary #Lawson of Boston University School of Law and #Steven G. #Calabresi, a Northwestern law professor and a co-founder of the Federalist Society, with which Cannon is affiliated.

Other legal experts, however, have joined former Justice Department officials and Smith’s legal team in saying
her ruling ignores the history of special counsel appointments and flouts Supreme Court precedent.

Most notably, the high court in 1974 unanimously required President Richard M. #Nixon to hand over recordings to a special prosecutor as part of the #Watergate investigation.

In that opinion, the justices endorsed the office, citing several statutes under which the attorney general had
“delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.”

While lower-court judges are bound to follow the Supreme Court’s lead,
Cannon took the unusual step of finding she was not required to abide by that aspect of the high court’s opinion in U.S. v. Nixon,
saying the case did not directly address the validity of the office of special counsel.

Michael J. Gerhardt, a University of North Carolina law professor who teaches about constitutional conflicts between presidents and Congress, said
Cannon cannot just brush aside a unanimous high court ruling.

“For a trial judge to ignore it is judicial malpractice,” he said, describing her most recent decision as
part of a “pattern of bias that leads her to endorse wacky or unfounded arguments,
and that’s a problem if you’re a judge.”
https://www.washingtonpost.com/politics/2024/07/20/cannon-trump-florida-appeal-special-counsel/