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The judge in Donald Trump's classified documents case may declare that prosecutor Jack Smith's appointment is invalid, a legal journalist has said.
It comes after Supreme Court Justice Clarence Thomas strongly suggested that Smith had no right to prosecute Trump.
In Donald Trump's presidential immunity case on Monday, Thomas wrote a separate concurring opinion that he questioned the legality of Smith's appointment as special counsel in charge of federal cases against Trump.
The Supreme Court found that Donald Trump is partially immune from prosecution for actions taken while he was in the White House.
In a 6-3 ruling, the justices returned Trump's case to the trial court to determine what is left of Special Counsel Jack Smith's indictment of Trump.
Anna Bowers, a journalist with the legal website, Lawfare, wrote on X, formerly Twitter, on Monday that Aileen Cannon, the judge in Donald Trump's classified documents case in Florida, may be thinking along the same lines as Thomas.
"In an opinion that mirrors Trump's legal argument in his election interference case in Washington, D.C., and his classified documents hoarding case in Florida, Thomas suggested that Smith may have been unlawfully appointed," Bowers wrote.
"Justice Thomas' concurrence in the immunity case seems to invite dismissal of Trump's charges on grounds that Jack Smith was unlawfully appointed. At least one judge seems to be taking that argument very seriously: Judge Aileen Cannon," Bowers added.
Cannon set aside two days of hearings in June to hear Trump's arguments that Smith was not legally appointed or funded.
Trump's lawyers argued that the constitution has strict perimeters that would disallow the appointment of special counsel whose job was solely to prosecute Donald Trump.
Unusually for her court, Cannon allowed Trump's side to present expert evidence at the hearing. Those witnesses included a conservative college lecturer and a conservative legal foundation.
Trump is facing 40 federal charges in Cannon's court over his alleged handling of sensitive materials seized from his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House in January 2021. He is also accused of obstructing efforts by federal authorities to retrieve them. Trump has pleaded not guilty to all charges.
Newsweek contacted Trump's attorney and Cannon's office for comment on Tuesday.
Separately, Smith is also prosecuting Trump in Washington, D.C., on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. Trump, the frontrunner for the Republican presidential nomination, has also pleaded not guilty to those charges.
In his concurring opinion on Monday, Thomas wrote, "If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the special counsel's appointment before proceeding."
"Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts. Fortunately, the Constitution does not permit us to chart such a dangerous course," he wrote, before focusing on Smith's appointment.
"I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States."
"But, I am not sure that any office for the Special Counsel has been 'established by law," as the Constitution requires," Thomas wrote.
About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more