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Judge Aileen Cannon didn’t just throw out the criminal charges alleging Donald Trump mishandled classified documents — she also suggested Special Counsel Jack Smith didn’t take her seriously enough.
In her shocking 93-page ruling on Monday, Cannon concluded the appointment of Smith as a special prosecutor in the case was unconstitutional.
The legality of special counsels has been debated for years, and Cannon wrote Monday that Congress needs to bestow such legal powers.
Cannon also wrote the Special Counsel had a “full and fair opportunity” to brief her on other remedies besides dismissing the case.
“Yet startlingly, the Special Counsel submitted nothing on the topic of the proper remedy for the Appointments Clause issue, despite challenging dismissal as a remedy,” Cannon wrote.
Cannon said Smith’s team instead asked for “some additional briefing” on the issue, but it was too late.
“This last-minute reference to conditional supplemental briefing … in no way signals a lack of a full and fair opportunity given to all parties to brief their positions,” Cannon concluded.
Before issuing the decision, Cannon took the step of allowing amicus briefs — arguments from third parties unrelated to the case — over the legality of special counsels, something that’s rarely done in criminal cases on a district court level. Several right-leaning groups, along with two former US Attorneys General who served in Republican presidential administrations — argued against the special counsel appointments.
Some legal groups and allies of Trump urged the Supreme Court to weigh in on the legality of special counsels when it heard arguments related to presidential immunity earlier this year. The Supreme Court, in a 6-3 decision granting presidents broad criminal immunity powers, ultimately didn’t take it up. In a concurring opinion, Justice Clarence Thomas said he believed most special counsels were unconstitutional, but none of the other eight justices joined his opinion.
The Department of Justice did not immediately respond to Business Insider’s request for comment.
