Aileen Cannon’s nuking of the Trump documents case continues her trend of embracing long-shot legal theories

By Tierney Sneed, CNN

(CNN) — After a year of court hearings examining far-fetched theories about presidential classification power, flimsy accusations of prosecutorial misconduct and heated debates about redacting court filings, Judge Aileen Cannon ended Jack Smith’s classified documents prosecution of former President Donald Trump on Monday for a more foundational – but nonetheless astonishing – reason.

She said Smith was unconstitutionally appointed as special counsel and that the funding of his office also violated the law. Her dismissal of the case on that rationale is at odds with several other court rulings from judges across the country that have upheld the Justice Department’s use of special counsels to spearhead politically sensitive investigations.

Cannon’s ruling is the climax of what was a frustrating run for the Smith team in front of the Trump-appointed trial judge in Fort Pierce, Florida. Her behavior in that case – as well as in a lawsuit brought by Trump to attack the documents investigation before he was charged – has been scrutinized by legal experts across the political spectrum.

“It’s not just that this is an extreme argument about the Appointments Clause of the Constitution, it’s that it’s one that exactly one Supreme Court justice has endorsed and lots of precedent refutes,” said Steve Vladeck, a CNN Supreme Court analyst and professor at Georgetown University of Law.

However, Trump’s arguments got a boost earlier this month with a concurrence from Justice Clarence Thomas, in the Supreme Court case examining what immunity the former president has in Smith’s election subversion prosecution. That concurrence was cited repeatedly in Cannon’s 93-page opinion Monday.

In a statement issued Monday afternoon, Peter Carr, a spokesman for the special counsel’s office, said that the Justice Department has approved plans to appeal.

“The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel,” Carr said. “The Justice Department has authorized the Special Counsel to appeal the court’s order.”

Politically, the timing of Cannon’s dismissal of the case could not have been better for Trump, even as her opinion did not exonerate him or weigh in on the merits of Smith’s allegations against Trump.

The ruling came down on the first day of the Republican National Convention, which will coronate Trump as the GOP’s White House nominee, and after a failed assassination attempt on Saturday rallied the party behind him.

Before Monday’s ruling, it was highly unlikely Smith’s case — which accused Trump of mishandling sensitive documents taken from his White House and then obstructing the investigation into them — would go to trial before the election. But the time it will take to appeal of Cannon’s ruling makes that an impossibility, and her opinion is likely to encourage his attorneys to bring the same arguments in the election subversion case in Washington, DC.

“The stakes are high, because the special counsel’s office has been a good tool,” CNN legal analyst Michael Moore said on “CNN Newsroom.” “She’s now brought all that into question with this order.”

“We go from little courthouse down in South Florida, and now this is like shooting a missile to the courthouse in Washington, DC,” added Moore, a former US attorney in the Obama administration.

An unlikely Trump argument gets an assist from Clarence Thomas

Just last week, Smith’s office argued to Cannon in court filings that she should not factor in Thomas’ writing in the Supreme Court immunity dispute when deciding whether the appointment was valid. The prosecutors noted that the appointment issue had not been presented to the justices and that no one else on the court joined Thomas in the concurrence.

In the immunity case, the Supreme Court’s 6-3 conservative majority decided that Trump had some immunity in the January 6, 2021, election subversion prosecution. Trump’s lawyers had not challenged the legality of Smith’s appointment in that case, and only Thomas raised the issue to say that the attorney general lacked the statutory power to appoint Smith, creating a separation-of-powers problem.

Thomas’ criticisms of how Smith had been appointed previewed the arguments that Cannon would ultimately adopt. She concluded that his prosecution violated the Constitution’s Appointments Clause, because Congress had not passed legislation that explicitly gave the attorney general power to outsource the investigation to an outside prosecutor.

Her ruling cut against several other cases where judges rejected challenges to the appointments of other special counsels, including in special counsel Robert Mueller’s Russia probe and in special counsel David Weiss’ prosecution of Hunter Biden. In other special counsel cases, defendants have not even bothered to bring the long-shot claims.

“I don’t think that, before Justice Thomas wrote his concurrence, this argument had a snowball’s chance,” said Mark Schnapp, a criminal defense attorney in South Florida who has been a close watcher of the classified document case.

Cannon additionally said that how Smith’s office was funded also violated the Constitution, an argument that was not addressed by Thomas. She held detailed-oriented hearing on both claims last month.

While it’s not known how far along Cannon was in considering her ruling when Thomas penned his concurrence in the immunity case, outside legal experts were skeptical that Thomas’ move to opine on the question – which was not teed up in the Trump January 6 case before the justices – was a coincidence.

“It’s hard to imagine that Justice Thomas wrote his concurrence, which addressed an issue that was not before the Supreme Court, with no awareness that it would be used this way,” Vladeck said.

In concurrence opinion, Thomas called on lower courts to “answer these essential questions” about Smith’s appointment before proceeding with the prosecutions against Trump, given the historical nature of the cases against the former president.

All eyes on expected appeal

Cannon’s ruling was a shock but fits with the eyebrow-raising way she had presided over both the criminal case, brought in June 2023, and over a lawsuit Trump brought the year prior challenging FBI’s search of Mar-a-Lago.

In that lawsuit, a conservative appeals court repeatedly overturned rulings by her that blocked investigators from accessing the documents they had seized and that ordered a third party-review of the materials. In a scathing opinion, the 11th US Circuit Court of Appeals said she was giving Trump undue special treatment because he was a former president.

While Cannon has attracted criticisms before Monday with her actions in the case, she had not issued the kind of substantive ruling that would give Smith the opportunity to ask for the 11th Circuit to intervene.

Many outside observers have called for her removal from the case, but higher courts typically do not take trial judges off of proceedings absent a clear and lengthy record of egregiously wrong rulings – and it’s unclear whether Smith would make such a request based on Monday’s dismissal decision alone.

Yet even if it is appealed and heard on an expedited basis, the issue is all but guaranteed not to be resolved in time for the case to go to trial before the election. Trump is expected to make the prosecution go away if voters return him to the White House.

“The odds are that if the Supreme Court ever considers this question, it will agree with the special counsel, and not Cannon – but that won’t happen any time soon,” Vladeck said. “Like the January 6 prosecution the future of this case now almost certainly hinges the election results this November.”

This story has been updated with additional developments.

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CNN’s Hannah Rabinowitz and Owen Dahlkamp contributed to this report.