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When Republican-appointed Supreme Court justices sided with Donald Trump in the immunity case two weeks ago, Justice Clarence Thomas took it upon himself to add a highly provocative concurring opinion. Special counsel Jack Smith’s office, the far-right jurist argued, is of dubious constitutional legitimacy.
As NBC News reported late last week, the appointed prosecutor urged U.S. District Judge Aileen Cannon not to take Thomas’ concurring opinion into consideration in the classified documents case. As my MSNBC colleague Jordan Rubin explained on Monday morning, the controversial Trump-appointed Florida judge did it anyway.
U.S. District Judge Aileen Cannon dismissed the classified documents case against Donald Trump on Monday. The Trump appointee wrote that special counsel Jack Smith’s “appointment violates the Appointments Clause of the United States Constitution.”
As Trump confronts dozens of felony counts across multiple jurisdictions, the classified documents case stands out for a reason: It’s the toughest to defend. Last summer, even a Senate Republican was willing to concede that the case looked like a “slam dunk” for prosecutors.
And yet, as things currently stand, the case is no more, despite the mountain of incriminating evidence.
It’s important to emphasize that Cannon didn’t dismiss the case on the merits; this was done on procedural grounds. In other words, the judge didn’t say Trump is innocent; she said Smith’s appointment as special counsel was unconstitutional and therefore the prosecutor didn’t have the authority to file the case in the first place.
By any fair measure, these developments aren’t just surprising, they’re also bizarre. As a New York Times report explained, “The ruling by Judge Cannon ... flew in the face of previous court decisions reaching back to the Watergate era that upheld the legality of the ways in which independent prosecutors have been named.”
Noah Rosenblum, a professor at New York University’s School of Law, said he had been skeptical of the idea that Cannon was undermining the rule of law to protect Trump but added that his perspective has changed. “This is bonkers,” Rosenblum wrote online in response to the judge’s dismissal of the case. “She is just making things up.”
Making matters even more dramatic is the recent pattern of events. A recent New York Times report noted: “Judge Cannon has exhibited hostility to prosecutors, handled pretrial motions slowly and indefinitely postponed the trial, declining to set a date for it to begin even though both the prosecution and the defense had told her they could be ready to start this summer.”
She has also, incidentally, repeatedly given observers reason to question her competence, lent credence to questions that legal experts consider absurd, refused to assign pretrial motions to a more experienced magistrate judge for reasons that are difficult to defend, and justified procedural delays by pointing to logjams that she created.
I’m reminded anew of an infamous quote attributed to Roy Cohn: “Don’t tell me what the law is, tell me who the judge is.”
The special counsel’s office seems likely to appeal to the 11th Circuit, which has already reversed Cannon before in this case. University of Michigan law professor Barbara McQuade, a former U.S. attorney and an MSNBC legal analyst, wrote online Monday morning that Cannon’s latest move might actually be good for Smith, since the prosecutor can use these developments to ask the appeals court for the case “to be reassigned to a new judge.”
Watch this space.
This post updates our related earlier coverage.