BREAKING: Biden DOJ’s classified docs case against Trump DISMISSED after judge deems Jack Smith appointment unconstitutional

"Former President Trump's Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order [ECF No. 326]. The Superseding Indictment is DISMISSED because Special Counsel Smith's appointment violates the Appointments Clause of the United States Constitution," the 93-page Monday morning order stated. "US Const., Art. II, § 2, cl. 2. Special Counsel Smith's use of a permanent indefinite appropriation also violates the Appropriations Clause, U.S. Const., Art. I, § 9, cl. 7, but the Court need not address the proper remedy for that funding violation given the dismissal on Appointments Clause grounds."

Cannon wrote that the challenges raised in the motion to dismiss asked whether there was 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. 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. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise."

Cannon wrote that "The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers," but the position of special counsel "effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers."

"If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause."

Cannon later added, "The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere—whether in this case or in another case, whether in times of heightened national need or not. In the case of inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so in many other statutory contexts."

"But it plainly did not do so here, despite the Special Counsel’s strained statutory readings. Nor does his appeal to inconsistent “historical practice” supplant the absence of textual authorization for his appointment. The same structural emphases resonate in the context of the Appropriation Clause, which “embodies a fundamental separation of powers principle—subjugating the executive branch to the legislatures power of the purse."

Cannon’s order came after the Supreme Court ruled in July that Trump does have immunity for official acts as president. In his concurring opinion, Justice Clarence Thomas called into question Smith’s appointment as special counsel in the J6 case against Trump.

"I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been 'established by Law,' as the Constitution requires," Thomas wrote.

"By requiring that Congress create federal offices 'by Law,' the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President," he added.

In August 2022, Trump’s Mar-a-Lago estate in Palm Beach, Florida was raided by the FBI, who were searching for documents they claimed were classified. Since then, questions were raised as to the extent to which the agency tampered with evidence taken from the residence, with prosecutors later admitting that the evidence had been altered, with the documents not matching their original order.

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