Trump has pleaded not guilty to 40 criminal counts related to the handling of classified materials, mainly that he held them at his Mar-a-Lago home in South Florida.
The Biden administration has said it will appeal Judge Aileen Cannon’s ruling that favored Trump.
Cannon had legal issues with Special Counsel Jack Smith (pictured below), primarily with how he was assigned the role by Attorney General Merrick Garland. Garland chose Smith, and that was supposedly the end of that, but it shouldn’t have been.
Smith, a private citizen, was appointed by Garland without being nominated by the President and confirmed by the Senate as required by the Appointments Clause of the Constitution. That appears in Article II, Section 2.
Cannon, who serves the Southern District of Florida, agreed with this argument.
Further, Cannon’s ruling cited the use of “permanent indefinite appropriation” for Smith’s position as a second violation of the Appointments Clause. This funding mechanism, which allows for ongoing support for Smith’s position without Congressional authorization, could be seen as circumventing the constitutional requirement for Senate confirmation.
Too much power for the unconfirmed
In addition to lacking Senate recognition, Smith’s appointment came with incredible power - too much of it relative to other U.S. attorneys, Cannon believed.
“The process is designed to give the Senate some say over who serves in the executive branch to ensure there aren’t complete nitwits who are appointed to major positions,” Will Chamberlain, senior counsel for The Article 3 Project, said on American Family Radio Tuesday.
“For lower-level people in the government that doesn’t necessarily apply, and agency heads can just hire them," Chamberlain told show host Jenna Ellis. "The thing about Smith is he’s essentially more powerful than any U.S. attorney with the ability to launch prosecutions on his own almost anywhere in the country. That makes him more powerful than attorneys who are understood to be principal officers who need to be confirmed by the Senate."
Even though the case will move to the appeals level, the prosecution of Trump by Smith should come to a halt, Chamberlain predicted.
“There’s no reason for any further proceedings to continue in D.C. under Jack Smith. If Judge Cannon is found to be right, and the appellate courts agree, everything in D.C. will have to get thrown out too. There’s no good reason to continue to waste time, energy and money on a prosecution that could easily get thrown out given an existing holding down in Florida,” Chamberlain said.
The likely next move for Trump’s legal team should be to file a motion for a stay pending the appeal.
Chamberlain believes Cannon’s ruling and subsequent delays leave the New York case under Judge Juan Merchan as the only remaining legal obstacle for Trump prior to the election.
Trump was found guilty of 34 counts of falsifying business records, opening the gate for repeated taunts of a “convicted felon” running for president by President Joe Biden and other political opponents.
Supremes immunity ruling
The New York case, considered wobbly by some legal analysts, is cast in a different light since the Supreme Court’s immunity ruling earlier this month.
“Judge Merchan and the New York prosecutors brought in a bunch of evidence of President Trump's official acts, and they did so over the objection of the Trump lawyers who said presidential immunity covers this evidence, and it shouldn't be introduced. Then the Supreme Court said very, very clearly, you cannot admit evidence of official acts in order to prove a president's guilt,” Chamberlain said.
