U.S. District Judge Aileen Cannon dismissed former President Donald Trump's classified documents case on July 15, finding that special counsel Jack Smith's appointment violated the Appointments Clause.
Prosecutors argued Mr. Smith was an inferior officer and that the attorney general had the statutory authority to appoint a special counsel, relying on several different statutes naming independent counsel, special attorneys, and other similar positions, but not a "Special counsel statute," as the judge noted in a hearing.
"Is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no," the judge wrote.
"None of the statutes cited as legal authority for the appointment-28 U.S.C. 509, 510, 515, 533-gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith." Historic Practice The judge found the prosecutors' arguments "Strained" and relied on "Inconsistent history."
Some of the historic special counsels had been appointed with a confirmation, some not; some were appointed by a president, and some not.
The practice of appointing "Private citizens like Mr. Smith-as opposed to already-retained federal employees-appears much closer to the exception than the rule," the judge found, as it has only been used in recent years, such as in the case of special counsel Robert Mueller.
The parties had also argued over whether the special counsel's office was properly funded, and the judge found that no ruling on the matter was necessary in light of her decision to dismiss the case.
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