Experts pin blame on Clarence Thomas as Cannon dismisses Trump classified docs case

15 July 2024

U.S. District Judge Aileen Cannon in a 93-page opinion has dismissed the Espionage Act/classified documents case against ex-president Donald Trump, claiming Special Counsel Jack Smith’s appointment by Attorney General Merrick Garland “violates the Appointments Clause of the United States Constitution.” Legal experts, calling her ruling “wrong,” say U.S. Supreme Court Justice Clarence Thomas is to blame.

Donald Trump was indicted by a grand jury on 37 felony charges, 31 of them under the Espionage Act, in the case related to his alleged unlawful removal, retention, and refusal to return hundreds of documents, many classified, some top secret, and some so secret they include the nation’s nuclear secrets.

“There’s no case any more, it’s been dismissed,” observed former U.S. Attorney Chuck Rosenberg, a former Counselor to the U.S. Attorney General, on MSNBC. He said he is “confident” Judge Cannon’s ruling would be appealed.

Politico’s Kyle Cheney reported the bombshell news:

Other legal experts agree.

“This ruling (which is wrong six ways from Sunday) can (and will) be immediately appealed to the Eleventh Circuit,” wrote professor of law Steve Vladeck. “To me, the only question is whether the Special Counsel also asks for the case to be reassigned on remand…”

Former federal civil rights prosecutor Dr. Kristy Parker, Counsel at Protect Democracy, said: “Hard to characterize how wrong this is — at least in a world where law matters. We may not be in that world any longer.”

Last month in oral arguments the argument Smith’s appointment was unlawful was made to Cannon, MSNBC’s Lisa Rubin noted Monday morning, saying that the judge appeared at the time to dismiss that claim.

“People tried this against Special Counsel Robert Muller,” MSNBC’s Ken Dilanian stressed, “and were unsuccessful and it’s really important to point out and so viewers understand there’s nothing in this opinion that speaks to the merits of this case, to the classified documents to the allegations of obstruction of justice. This is an entirely procedural issue. It’s a constitutional question. It’s whether whether the law establishing the Special Counsel violates the appointments clause, and she also actually made a ruling on a separate argument about the appropriations clause. And and she, and she’s decided that the way Congress is funding the way the Special Counsel is funded, is not appropriate either.”

Constitutional law professor and political scientist Anthony Michael Kreis described the dismissal as “Insanity.”

Noting today is also the start of the 2024 Republican National Convention, founder and Executive Director of Protect Democracy, Ian Bassin, a former Associate White House Counsel, blasted the Trump-appointed judge:

“Cannon likely thought releasing her latest gift to Trump at the opening of the RNC would help him, but changing today’s headlines to a pic reminding that Trump stole our nation’s most sensitive nat’l security docs and hid them in his bathroom may not be the gift she thinks it is.”

Cannon likely thought releasing her latest gift to Trump at the opening of the RNC would help him, but changing today’s headlines to a pic reminding that Trump stole our nation’s most sensitive nat’l security docs and hid them in his bathroom may not be the gift she thinks it is. pic.twitter.com/9aUEg3yGLh
— Ian Bassin 🇺🇸 (@ianbassin) July 15, 2024

MSNBC legal analyst Joyce Vance, a former U.S. Attorney called Cannon’s decision, “Absolutely incredible,” while concurring the ruling will be appealed.

“That’s it,” she added. “Unless the 11th Circuit & ultimately SCOTUS disagree, Trump goes free for walking out of the White House with top secret documents. At best, this is seriously delayed. Disgusted.”

Some legal experts, including Vance, point to U.S. Supreme Court Justice Clarence Thomas’ separate concurrence in the Trump immunity case as giving Judge Cannon the roadmap to come to this decision.

“This was the argument advanced by Justice Thomas in his concurrence in Trump v. US, which no other Justice signed into at the time,” Vance noted.

Professor of law Leah Litman observed, “Justice Thomas’s ‘Cannon-currence’ worked.”

Parenthetically, she explained, “In the Trump immunity case, Justice Thomas wrote separately to suggest the special counsel was unlawfully appointed; the reasoning laid out the roadmap for this (wrong) result/decision.”

“Justice Thomas strikes again,” wrote professor of law Melisa Murray. “Not only did a majority of the Court give presidents almost unfettered license in the immunity case, Justice Thomas concurred separately to question the constitutionality of the special counsel. He laid the table and Judge Cannon took a seat.”

“Surprising absolutely no one,” observed legal journalist Cristian Farias. “This is a Federalist Society pipe dream, one they could never achieve during the Mueller years. And precisely what Clarence Thomas, all alone, suggested should happen in the Trump immunity case.”

But, he added, “This is not the end.”

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