WASHINGTON—Today in U.S. v. Trump, Judge Aileen Cannon of the United States District Court for the Southern District of Florida dismissed the superseding indictment filed by Special Counsel Jack Smith against former President Donald Trump charging him with 42 violations of the Espionage Act, along with two other defendants, for allegedly mishandling classified material. Cannon held that Smith’s appointment violates the Appointments Clause and that the Special Counsel’s use of federal funds violates the Appropriations Clause of the U.S. Constitution. 

Heritage Foundation Vice President of the Institute for Constitutional Government John G. Malcolm made the following statement: 

“Judge Cannon’s opinion is a serious and thorough analysis of important constitutional issues involving separation of powers. The appointment of special prosecutors vested with almost unlimited authority and without any input from the legislature was one of the grievances cited against King George III in the Declaration of Independence and is the reason why the Constitution’s Appointments Clause was crafted to give Congress a role in the appointment of special prosecutors.

“Cannon’s opinion points out precisely why Attorney General Merrick Garland’s appointment of Smith violates the Constitution, since Congress never passed a statute giving Garland such authority. This serious issue, which Justice Thomas recently raised in his concurring opinion in the presidential immunity case, will finally receive the attention that it deserves and may well end up being resolved by the Supreme Court.” 

Cully Stimson, Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies stated: 

“Cannon’s 93-page order granting the motion to dismiss the superseding indictment against Donald Trump is a methodical, logical, and persuasive opinion.  She dissects the Special Counsel Appointment Order, the Special Counsel Regulations, and provides a thorough historical background to anyone who reads her opinion of the separation of powers principles baked into the Appointments Clause, and how Attorney General Garland’s “appointment” of Special Counsel Jack Smith violates those principles. 

“In journeyman fashion, Judge Cannon analyzes each argument propounded by Smith as to why his appointment is lawful, and explains why each argument has no merit, giving specific examples of how and why those arguments fail. She notes that Garland could have assigned this case to any of the 93 Senate-confirmed United States Attorneys without violating the Appointments Clause.  Instead, Garland gave the case to private citizen Jack Smith, and in doing so, violated the Appointments Clause. No doubt, the Justice Department will appeal this order to the U.S. Court of Appeals for the Eleventh Circuit, so this saga will continue.”  

Senior Legal Fellow Hans von Spakovsky, a former Department of Justice lawyer, added: 

“Judge Cannon must be praised for upholding the rule of law and the Constitution in a very difficult case and in the face of unfair, politically charged criticism of her handling of it. Special recognition must also be given to former Attorney General Edwin Meese III who first raised the unconstitutionality and unlawfulness of Jack Smith’s appointment in an amicus brief filed in federal court in Washington in Smith’s other questionable indictment of Donald Trump.  

“It was an act of arrogance for Garland to believe he could appoint a special prosecutor with extraordinary powers, bypassing the constitutional requirement that such a prosecutor be nominated by a president and confirmed by the Senate. As Judge Cannon rightly said, the attorney general has no authority ‘to appoint a federal officer with the kind of prosecutorial power wielded by’ Smith.”