Classified documents case comes crashing down

To call Jack Smith an aggressive prosecutor is an understatement.

Smith’s crusade against former president Donald Trump has been nothing less than scorched earth, with a shamelessly transparent goal of doing all he can to stop Trump’s re-election in November. By dismissing Smith’s classified documents prosecution in Florida, District Judge Aileen Cannon’s ruling has not so much clipped Smith’s wings as it has tossed him from the nest altogether. And her decision throws both prosecutions into a tailspin from which they may never recover.

For two years Attorney General Merrick Garland has been insisting that Smith is operating with complete freedom and discretion, walled off from Justice Department oversight and political pressure from the White House. The problem is that, under the Appointments Clause of the Constitution, such an independent “officer of the United States” must be either appointed by the president and confirmed by the Senate or acting pursuant to a specific statute passed by Congress. Smith fails under either standard.

So, while Garland is free to name any lawyer with a valid bar license to be a federal prosecutor, that prosecutor must report to someone properly installed by law. David Weiss, the US attorney in Delaware who is prosecuting Hunter Biden, passes this test. Jack Smith does not.

At this point none of Smith’s options are good ones. He can appeal Judge Cannon’s ruling to the Eleventh Circuit Court of Appeals, which will blow through any hope of bringing the case to trial any time soon. And, based on Justice Clarence Thomas’s concurring opinion in the Supreme Court’s recent immunity ruling, it’s a safe bet that the high court will affirm Cannon’s decision.

The Justice Department can transition the case to a duly appointed United States an attorney and re-file the charges. But that will also take time and leave Smith limping away from two years of spinning his wheels. And good luck finding a Senate-confirmed prosecutor willing to pick up this old dog and brush off its fleas. Cases do not get better with age, and if Trump wins in November both of Smith’s case are dead in their tracks regardless.

The left will no doubt scream about Cannon being a right-wing judge intent on delaying and dismissing the case to protect Trump. But the fact is Smith is the victim of his own ambition. He could have brought a simple obstruction of justice case in Florida which could have been wrapped up in two weeks. Instead he insisted on charging thrity-one counts under the Espionage Act. Not only did this prolong the case as does any matter involving national defense litigation, it screamed of hypocrisy in the face of President Biden’s own mishandling of classified document.

So where do things go from here? Judge Tonya Chutkan who presides over Smith’s January 6 case has been hostile to Trump from the get-go. She could ignore Cannon’s ruling and press on, but that runs the risk of the case getting to the Supreme Court with the same result. And with the Court’s recent ruling on immunity that case is stuck in its tracks anyway for the foreseeable future.

If President Biden is serious about lowering the national temperature, he would order Smith to stand down in Florida and dismiss the case in Washington, DC. The president could project the image of a magnanimous elder statement, while still leaving Trump with state court exposure in New York and Fulton County. Judge Cannon has provided Biden with an off-ramp to end Smith’s two-year lawfare campaign against Trump. Now let’s see if he’s smart enough to take it.