Judge Cannon tossing Trump’s case raises risk for acting prosecutors
Special counsel Jack Smith’s team will soon appeal Cannon’s decision to reject the indictment because of how Smith was appointed.

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By Perry Stein and Devlin Barrett
August 26, 2024 at 5:00 a.m. EDT

Judge Aileen M. Cannon’s surprising dismissal of Donald Trump’s criminal case in Florida could jeopardize not just future special counsels but any federal prosecutor or senior official serving in a temporary position, according to legal experts. ... Justice Department officials share that concern, according to people familiar with the situation who spoke on the condition of anonymity to discuss internal conversations. The agency declined to comment.

Cannon ruled last month that special counsel Jack Smith was unlawfully appointed because he was not confirmed for his position by the Senate, tossing the 40-count indictment against the former president for allegedly keeping classified material after leaving the White House and obstructing government efforts to retrieve it. Smith and his team are finalizing their appeal of that decision to the U.S. Court of Appeals for the 11th Circuit, which is due Tuesday.

Legal experts say Cannon’s ruling could be used as ammunition for defense lawyers to challenge indictments or directives from any interim official who is not confirmed by Congress, including acting U.S. attorneys or senior Justice Department officials. It could be years before the potential consequences of Cannon’s opinion are fully understood. ... “The decision creates risk elsewhere,” Matthew Seligman, a lawyer at Stanford University’s Constitutional Law Center, said in an interview. He argued before Cannon as an outside legal expert at a hearing in the June that the appointment of Smith was constitutional.

Cannon’s ruling rejected decades of findings by other courts that approved the appointments of special counsels, or similar types of semi-independent prosecutors. She wrote that Congress had not granted the attorney general authority to appoint someone with as much power as Smith without Senate approval.

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By Perry Stein
Perry Stein covers the Justice Department and FBI for The Washington Post. She previously covered D.C. education. Before she joined The Post in 2015, she was a staff writer for Washington City Paper and wrote for the Miami Herald. Twitter

By Devlin Barrett
Devlin Barrett writes about the FBI and the Justice Department, and is the author of "October Surprise: How the FBI Tried to Save Itself and Crashed an Election." He was part of reporting teams that won Pulitzer Prizes in 2018 and 2022. In 2017 he was a co-finalist for the Pulitzer for Feature Writing and the Pulitzer for International Reporting. Twitter