Trump documents case: What if there鈥檚 no one to investigate presidents?
Special counsel Jack Smith speaks to reporters at his offices in Washington June 9, 2023. He says he will appeal Monday鈥檚 dismissal of the Trump documents case by Judge Aileen Cannon.
Leah Millis/Reuters/File
Could the age of the special prosecutor be nearing its end?
In a potentially far-reaching ruling on Monday, a federal judge in Florida dismissed a criminal case seeking to prosecute former President Donald Trump over his alleged retention of classified documents.
The decision by Aileen Cannon, a U.S. District Court judge in southern Florida whom Mr. Trump appointed in 2020, held that the appointment of a special prosecutor to the case by the U.S. Department of Justice was unconstitutional. The special counsel, Jack Smith, said he will appeal the ruling.
Why We Wrote This
A federal judge in Florida has dismissed the Trump documents case, saying the special counsel leading the prosecution has no constitutional power to do so. Where does that leave independent investigations of presidents?
The ruling represents the latest in a string of legal victories for Mr. Trump. It听came days after he survived an assassination attempt in Pennsylvania and hours before he officially became the Republican nominee for president. The former president is听the subject of four separate criminal prosecutions this year;听this is the third听to have stalled in recent months.听
In the short term, Judge Cannon鈥檚 ruling almost guarantees that the classified documents case won鈥檛 go to trial before the presidential election in November. But as special prosecutors have come to be relied on in the most politically sensitive and weighty cases, the decision could have broader implications for presidential power听and听the rule of law.
What exactly happened on Monday?
The ruling came in a case related to allegations that Mr. Trump retained classified documents after leaving office and refused to return them to federal authorities. (The case stems from that infamous听raid听of his Mar-a-Lago home two years ago.)
Mr. Trump has pleaded not guilty to 40 criminal counts in the case, but the decision this week had nothing to do with the allegations in the federal indictment. It concerned the person who brought the indictment.
In order to avoid an appearance of bias, Attorney General Merrick Garland assigned the case to Mr. Smith, a former Department of Justice prosecutor with experience investigating war crimes and political corruption. This appointment, Mr. Trump鈥檚 lawyers argue, was unconstitutional.
Mr. Smith, who is also leading the case against Mr. Trump related to his involvement in the Jan. 6, 2021, attack on the U.S. Capitol, has countered that because he is an 鈥渋nferior officer鈥� under the Constitution, he can be appointed directly by the executive branch. This is just as a U.S. attorney, who is subject to confirmation by the U.S. Senate, can unilaterally appoint an assistant U.S. attorney.
In a 93-page听, Judge Cannon disagreed. Because Congress didn鈥檛 have appropriate input into Mr. Smith鈥檚 appointment, she ruled, it violated both the Appointments Clause and, as it relates to spending, the of the Constitution.
The Appointments Clause 鈥済ives Congress a considered role in determining the propriety of vesting appointment power for inferior officers,鈥� she wrote. 鈥淭he Special Counsel鈥檚 position effectively usurps that important legislative authority.鈥�
Federal laws and regulations have for decades held that special prosecutors should be appointed in cases in which the impartiality of Justice Department officials could be reasonably questioned, particularly for investigations into the president or a member of his Cabinet. Critics have hit back that these offices carry too much power with too little accountability, but courts have typically rejected constitutional challenges to a special prosecutor鈥檚 appointment. Most recently, a federal judge in Delaware rejected a claim from Hunter Biden, President Joe Biden鈥檚 son, that the special prosecutor investigating him for federal gun crimes was appointed on unconstitutional grounds.
But Mr. Smith鈥檚 appointment was different, wrote Judge Cannon.
鈥淭here does appear to be a 鈥榯radition鈥� of appointing special-attorney-like figures in moments of political scandal throughout the country鈥檚 history,鈥� she wrote. 鈥淏ut very few, if any, of these figures actually resemble the position of Special Counsel Smith.鈥�
For example David Weiss, the special prosecutor in the Hunter Biden case, was serving as a U.S. attorney when he took on the Biden case. Mr. Smith, meanwhile, was working for a criminal court at The Hague, Netherlands, when he took on the cases against Mr. Trump.
鈥淭he appointment of private citizens like Mr. Smith 鈥� as opposed to already-retained federal employees 鈥� appears much closer to the exception than the rule,鈥� said Judge Cannon.
The executive branch鈥檚 鈥済rowing comfort鈥� in appointing special counsels 鈥渋n the more recent era,鈥� she added, 鈥渉as followed an ad hoc pattern with little judicial scrutiny.鈥�
How has the special prosecutor role changed?
Federal special prosecutors have been used since the late 19th century 鈥� President Ulysses Grant appointed John Henderson to investigate听听鈥� but they have become increasingly common since Watergate forced the resignation of President Richard Nixon.
Mr. Nixon鈥檚 attempts to fire the independent counsel investigating the Watergate scandal led Congress to pass a law outlining how and when special prosecutors can be used. The statute underpinned special prosecutions like the Iran-Contra affair and the Whitewater scandal, to name two high-profile cases. But it came in for criticism from members of both political parties for enabling sprawling and unaccountable investigations at great cost to the taxpayer.听
Congress allowed that statute to expire in 1999, at which point the Justice Department implemented regulations governing the use of special prosecutors. The regulations require the attorney general to approve any action a special prosecutor takes, but the attorney general must report to Congress when he blocks a special prosecutor action.
鈥淭hat was the compromise,鈥� says Barbara McQuade, a former U.S. attorney who teaches at the University of Michigan Law School.
The regulations were 鈥渁n effort to maintain some independence, but address the concerns of the sprawling, 鈥榶ou鈥檝e created a monster鈥� idea of an independent counsel,鈥� she adds.
Special prosecutors have since become even more common. While there were roughly 20 special prosecutions听听under the federal statute, there have been five in the last seven years. Some experts say the regulations have been invaluable in allowing the federal government to faithfully investigate cases the White House may not have wanted pursued, such as investigations into Russian interference in the 2016 election, Jan. 6, and President Biden鈥檚 alleged unlawful retention of classified documents.
Special prosecutors 鈥渉ave been used [when] there鈥檚 particularly important, salient, politically charged investigations,鈥� says Anthony Michael Kreis, a professor at the Georgia State University College of Law.
鈥淚t鈥檚 been a really important tool in order to ensure that the Department of Justice鈥檚 work is done in a fair and impartial way, without any undue influence from the attorney general,鈥� he adds.
So what happens now? What could this all mean?
Mr. Smith has appealed Judge Cannon鈥檚 ruling to the U.S. Court of Appeals for the 11th Circuit. The appeals court has already overruled the judge听听in the classified documents case, but this question may not go the same way.
Judicial skepticism of special prosecutors dates back to at least the 1980s. In a 1988 dissent, Justice Antonin Scalia criticized the U.S. Supreme Court for holding that the independent counsel is an 鈥渋nferior officer鈥� and thus not in violation of the Appointments Clause.
Earlier this month, in a decision holding that Mr. Trump has a degree of presidential immunity from criminal charges brought in the Jan. 6 case, Justice Clarence Thomas echoed those concerns in a concurring opinion.
鈥淚 am not sure that any office for the Special Counsel has been 鈥榚stablished by Law,鈥� as the Constitution requires,鈥� he wrote. Lower courts, he added, should 鈥渁nswer these essential questions concerning [Mr. Smith鈥檚] appointment.鈥�
Judge Cannon鈥檚 decision on Monday quoted the Justice Scalia dissent and the Justice Thomas concurrence. Neither of those opinions is binding law 鈥� in fact, no other justice joined either opinion 鈥� but courts may now be pushed toward issuing a concrete ruling on the question.
If the role of special prosecutor is curbed, or abolished entirely, the simplest response would be for regular听Justice Department prosecutors themselves to take on those politically sensitive cases. But that could be a positive thing for the country, experts say.
The existence of special prosecutors inherently suggests that the Justice Department and its prosecutors are biased, adds Professor McQuade.
鈥淲e have to trust them to do their jobs effectively, [that] there are checks in the system,鈥� she says.
But there does need to be a way to hold presidents to account if or when they break the law, experts say, especially in the context of Congress being deeply polarized and the Supreme Court granting former presidents significant immunity from criminal prosecution, says William Howell, director of the Center for Effective Government at the University of Chicago.
鈥淚f there鈥檚 no special prosecutor, and the president is granted widespread immunity for any official conduct, and Congress is congenitally incapable of mustering the supermajorities required to impeach [and] convict, what鈥檚 left?鈥� asks Dr. Howell.
鈥淭hat鈥檚 precisely the question we should be asking,鈥� he adds. 鈥淭here are widespread concerns about the health and well-being of democracy, and the prospects of holding a president to account are just becoming dimmer and dimmer.鈥�