UPDATE: It’s official, Smith will appeal. The Hill reports:
“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,” Peter Carr, spokesman for Smith’s office, said in a statement.
“The Justice Department has authorized the Special Counsel to appeal the court’s order,” he continued.
It’ll go to a 3-judge panel of the 11th circuit.
Josh Kovensky at Talking Points Memo noted that Cannon has put herself on thin ice, but there’s no guarantee the 11th circuit would both reverse AND remove her:
...[It] read[s] like an appellate opinion, and not that of a district court judge. Going far beyond the typical role of a judge at her level, Cannon laid new legal ground, contravening decades of decisions across the country, including two at the D.C. Circuit, to the contrary. She also opened herself up to the possibility that Smith could both appeal the case — his office said Monday it would — and move for Cannon’s removal based on her handling of the matter.
...Several attorneys told TPM that they expected the 11th Circuit to reverse Cannon’s decision, opening the question of whether it would return to her or if Smith would be able to get the appeals court to remove Cannon from the case.
“I think getting this overturned before the election is very likely. I mean, I don’t think that would be a huge effort,” Peter Zeidenberg, a former federal prosecutor now at Arent Fox, told TPM. “I think Jack Smith could write a brief in the next 10 days, and ask for expedited briefing, and this could get resolved in a month.”
But it’s not clear what value a potential victory at the 11th Circuit and declination by the Supreme Court would have if the case returns to Judge Cannon...
Writing at USA Today, Aysha Bagshi notes that this timeline could drag on for WAY past the election (and if Trump is elected, the whole thing becomes moot):
... It will likely take at least months for that court to get briefs from both Smith and Trump, potentially hold oral arguments, and then issue a decision. If the Supreme Court takes the issue up, at a minimum the appeal would probably drag on for months.
...Cannon has previously been strongly rebuffed by Republican-appointed appellate judges in relation to Trump. A panel of three Republican appointees reversed her decision to temporarily block investigators from reviewing documents seized from Trump's Mar-a-Lago club, stating that her ruling involved "a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations" and violated "bedrock separation-of-powers limitations."
… Cannon rejected suggestions from two other judges to step aside when the Trump documents case was first assigned to her, according to a New York Times report. The chief judge of Cannon's own Southern District of Florida court, George W. Bush appointee Cecilia Altonaga, said it would look bad for Cannon to oversee the trial given the controversy surrounding the documents decision that was overturned on appeal.
Earlier UPDATE: Ha, just caught this from MSNBC.
They note that Judge Cannon specifically states in her conclusion,
“This order is confined to this proceeding, and the court decides no other rights or claims”
So for all of those pointing out that this would invalidate Hunter Biden’s conviction and ongoing legal troubles… nope, it doesn’t.
WAPO:
The federal judge overseeing the classified documents charges against former president Donald Trump has dismissed the indictment, on the grounds that special counsel Jack Smith was improperly appointed, according to a new court filing Monday.
...U.S. District Judge Aileen M. Cannon’s ruling is a remarkable win for Trump, whose lawyers have thrown longshot argument after longshot argument to dismiss the case. Other courts have rejected similar arguments to the one that he made in Florida about the legality of Smith’s appointment.
...“Upon careful study of the foundational challenges raised in the Motion, the Court is convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme—the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law,” Cannon concluded in her 93-page order.
Josh Kovensky gives us more detail at Talking Points Memo (story includes a link to the full ruling on Google Drive)
Cannon’s determination that Smith was unlawfully appointed effectively endorses a legal theory tested multiple times in previous cases and dismissed, rooted in the idea that the Attorney General cannot appoint and fund a special counsel absent authorization from Congress. That was seen as an absurd notion, and one contravened by decades of special counsel investigations under the current statute.
But it received a boost both after Cannon held a multi-day hearing on the question and after Supreme Court Justice Clarence Thomas supported the idea in a concurrence in the Trump immunity ruling. Cannon cited that concurrence throughout her order.
Here’s Chuck Schumer:
“This breathtakingly misguided ruling flies in the face of long-accepted practice and repetitive judicial precedence. It is wrong on the law and must be appealed immediately. This is further evidence that Judge Cannon cannot handle this case impartially and must be reassigned.”
And we continue the pattern of “The President has unlimited power, unless he’s a Democrat”
CNN:
In a ruling Monday, Cannon said the appointment of special counsel Jack Smith violated the Constitution.
“In the end, it seems the Executive’s growing comfort in appointing ‘regulatory’ special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny,” Cannon wrote.
As @CallToActivism points out, this is grounds for Smith to appeal, and the 11th circuit is likely to be sympathetic — but then there’s SCOTUS.
Since, as Adam Klasfeld notes,
In Trump's immunity ruling, Justice Thomas all but invited Judge Cannon to find Jack Smith was unconstitutionally appointed as special counsel.
Cannon noticed.
Her ruling doing so cites that concurrence at least three times.
Chris Hayes:
Just to be crystal clear: SCOTUS has upheld special counsels repeatedly. Cannon is a district court judge, her job is to apply controlling precedent. She’s doing this because she thinks the MAGA court is on the same page as her and Trump’s lawyers and will go along.
And here’s the “Unity” reaction from the orangeman himself: