Slate reports:

In a nearly 100-page order issued Monday morning, [Judge Aileen] Cannon states that special counsel Jack Smith’s appointment by the attorney general violates the appointments clause of the Constitution, which she says mandates that “officers of the United States—whether inferior or principal—must be appointed by the president and confirmed by the Senate.” Cannon concluded that there isn’t any statute in the United States Code that authorizes Smith’s appointment, so he therefore cannot legally conduct his classified documents prosecution.

Here she echoed Supreme Court Justice Clarence Thomas’ argument from his concurring opinion in the Supreme Court’s presidential immunity decision earlier this month. “I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires,” Thomas wrote. “If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.”

Cannon, a Trump appointee, has been extraordinarily sympathetic to the former president’s arguments in the classified documents case since it was filed in her court last year in Miami; she eventually pulled the case from her calendar.

It’s likely that Cannon’s decision will be appealed. “Jack Smith could view Cannon’s decision as a golden opportunity to refile this case in D.C., where the alleged theft of classified documents began, and escape Cannon’s courtroom for good,” Slate’s Mark Joseph Stern noted. [Continue reading…]