RUTHFULLY YOURS

It has been a truly crazy few days in the American political news cycle. While nothing could quite top former president Donald J Trump dodging an actual bullet, which clipped the top of his ear at a campaign rally in Pennsylvania on Saturday, on Monday he dodged a huge legal bullet as well.

Florida judge Aileen Cannon dismissed perhaps the most serious federal charges that Trump faced – 40 felony counts for possession and destruction of classified documents. This included crimes under the Espionage Act and the ‘willful retention of national-defence information; conspiracy to obstruct justice; false statements and representations’. ‘Each of the more than 30 willful-retention counts carry a maximum 10-year sentence’, the Associated Press reported back in April.

Judge Cannon’s bombshell ruling was a rebuke to the Biden Justice Department and attorney general Merrick Garland. Her decision centred around funding and oversight of the Special Counsel, an office originally constituted by congressional act following Watergate.

‘Cannon chose to dismiss the federal case because Garland unlawfully appointed [special counsel Jack] Smith, whom the president did not nominate nor did the Senate confirm for his prosecutorial position. Moreover, Congress did not appropriate funds to Smith’s investigation as required under federal law’, the National Review explains. At the heart of the matter is who has the authority to investigate federal crimes. By law, they must be ‘officers of the United States’, and that designation can only be given two ways – by being ‘nominated by the president and then confirmed by the Senate’ or ‘appointed to a position that “shall be established by law”’ – which is to say, by congressional statute’, as Andy McCarthy notes. Smith was not appointed via either of these democratic procedures.

The Office of the Special Counsel has investigated some of the hottest political scandals of modern times – including the Clinton-Lewinsky affair and the leak of CIA agent Valerie Plame’s name to the press during George W Bush’s presidency. More recently, it has given us the Mueller investigation into Russian interference in the 2016 election and the Durham report, which revealed political bias in the FBI. So it’s not particularly surprising that the person appointed to the role of special prosecutor should be a lightning rod for intense political criticism. But Judge Cannon has gone further than this, arguing that Jack Smith’s appointment was also unconstitutional, agreeing with Trump’s legal team.

Since 1999, the Office of the Special Counsel has been overseen by the Justice Department, after Congress let its own oversight of the office ‘lapse in the wake of the Whitewater investigation into President Bill Clinton’, as the New York Times explains. This meant that the office was both funded and overseen without congressional input. As Judge Cannon wrote: ‘The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in the propriety of vesting appointment power for inferior officers. The special counsel’s position effectively usurps that important legislative authority.’

Cannon’s decision is a huge boon to Trump and lends yet more weight to his argument that the cases against him are politically motivated. After all, the classified-documents case was widely considered to be the most serious of the legal threats he faced. Those documents were infamously seized at the precedent-shattering FBI raid on Trump’s Mar-a-Lago estate in Florida in August 2022. The raid was even reported in the mainstream media as ‘a drastic step’ and ‘a dramatic escalation’.

While the current Trump-deranged Democratic establishment would be loath to admit it, because it benefits Trump in the immediate term, Cannon’s ruling could actually benefit both parties in the long run. With limited oversight and a virtually unlimited budget, the special counsel risked becoming a witchfinder general of sorts, without facing public accountability or congressional scrutiny. The Democrats might hold a lot of executive power right now, but the shoe could very well be on the other foot very soon.

On the face of it, this looks a lot like a victory not just for Donald Trump. It has also dealt a blow for representative democracy – and against the overreach of the unaccountable.

Jenny Holland is a former newspaper reporter and speechwriter. Visit her Substack here.