We were taken with the reaction in Democratic circles to the recent decision by federal judge Aileen M. Cannon dismissing in its entirety, prior to trial, the so-called “classified documents case” against former President Donald Trump. It had been brought by Special Counsel Jack Smith and charged Trump with illegally retaining classified documents after he left office.
Judge Cannon ruled that Smith’s appointment was not valid because it was not based on a specific federal statute and because he was chosen by Attorney General Garland and not by the President, nor was he confirmed by the Senate as the Constitution requires.
This was a blow to the Biden administration’s overall efforts to promote bringing cases against the conservative Donald Trump, to prosecutors and juries they presumed would be generally antagonistic to Trump. Smith not only brought the now dismissed retention of classified documents case, but also the Jan. 6 case related to the attack on the Capitol and his alleged efforts to illegally retain power after the 2020 presidential elections.
Except for some minor exceptions, Smith seemed to be smooth sailing until the Supreme Court, in a preliminary ruling in one of his cases, ruled that a President has substantial immunity from criminal prosecution for acts even tangentially related to his official duties. So, both of his cases were put on hold pending judicial hearings to determine the applicability of the immunity ruling to each particular case.
Smith had argued that there was substantial legal precedent for the way he was appointed and it was thus a valid appointment. And in this he was joined by a cadre of legal scholars. Judge Cannon disagreed, and so did another group of scholars who went along with her legal analysis that she was not bound by the legal precedents cited by Smith.
In truth, reasonable arguments can be made for both positions which is why appeals court were created – to choose between and among different approaches. And thereby hangs a tale.
When Judge Cannon ruled against him and in favor of Trump several months ago in an earlier phase of his case before her, Smith didn’t just lodge an appeal on the merits of the particular difference of opinion. Rather, he asked the appeals court – unsuccessfully – to entirely remove her from the case over her effrontery!
Fast forward to Monday’s ruling by Judge Cannon: According to The New York Times, Senator Chuck Schumer, Democrat of New York and the U.S. Senate Majority Leader, said her decision was “breathtakingly misguided,” declaring that “Judge Cannon cannot handle this case impartially and must be reassigned.” [Italics ours].
Representative Dan Goldman, a New York Democrat who served as lead counsel for his party in the first Trump impeachment trial, said in a statement that the ruling ran roughshod over precedent and “common sense.” Goldman went on to say that the Cannon decision was the “stuff of a banana republic, not a democracy.”
And so it goes. Sometimes notorious bullies like Smith pick on the wrong guy.
