Judge Aileen Cannon's dismissal of Donald Trump's classified documents case may backfire on the former president, according to a slew of legal experts, potentially landing the presumptive Republican nominee in another court where he'd be less likely to win on the merits.
In her decision Monday, Cannon opined that the appointment of special counsel Jack Smith by the Department of Justice violated the Constitution. But she had long frustrated prosecutors and legal observers before this week for repeatedly delaying the trial and appearing partial towards Trump's team, culminating now in a ruling that one expert called "jurisprudential garbage." The decision, which clashes with Watergate-era precedent over the appointment of independent prosecutors, asserts that Smith should have been appointed by the president himself and confirmed by the Senate.
"Judge Cannon dismissed decades of institutional precedent, years of recent rulings on Mueller and Smith, and pretty much the entire premise of the special counsel regulations. Her ultimate complaint? Jack Smith is TOO independent," wrote Bradley P. Moss, a national security lawyer.
Cannon, responding to the Supreme Court's earlier decision to grant Trump immunity over "official acts," had earlier this month approved the former president's request to once again delay the trial so that the high court's ruling could be evaluated. In a concurrence with that ruling, Justice Clarence Thomas had written that special counsel Smith's appointment violated the law; Cannon proceeded to cite Thomas three times in her own ruling.
Thomas voted with the Supreme Court's 6-3 right-wing majority in favor of Trump, but he was the only judge to raise the repeatedly-rejected argument that the Constitution's appointments clause prohibits special counsels. According to some legal experts, the reliance on Thomas' opinion and the apparent flimsiness of Cannon's ruling gives Smith an opening to appeal the decision and seek a different judge to oversee the case.
Smith can appeal to the 11th Circuit and seek a reassignment on remand, but even if the Supreme Court gets involved, former federal prosecutor Renato Mariotti noted that "Judge Cannon’s ruling, which would invalidate the appointment of any special counsel, is unlikely to get five votes in the Supreme Court."
Another expert suggested that Smith turn the case over to federal prosecutors in Florida.
"If I'm Jack Smith and the DOJ, I might consider handing the Mar-a-Lago case to the United States Attorney for the Southern District of Florida, re-indict, and hope it gets assigned to a more competent judge than Cannon," constitutional law professor Anthony Michael Kreis, who believes that a reversal and re-assignment is unlikely, wrote on social media.
The documents case, based in part on the testimony from a former Trump lawyer who recalled discussions with his client over how to hide the files from government investigators, was initially considered to be the most straightforward of the four legal cases being pursued against the former president. Now, even a best-scenario replacement judge may not be enough to start the trial before November.
"Unless the 11th Circuit & ultimately SCOTUS disagree, Trump goes free for walking out of the White House with top secret documents," wrote former federal prosecutor Joyce Vance. "At best, this is seriously delayed. Disgusted."
