A WELCOME piece of news arrived for Donald Trump on July 15th, the first day of the Republican National Convention. The criminal case against him for allegedly removing classified documents from the White House—and piling them in (among other places) a ballroom and bathroom at Mar-a-Lago, his Florida home—was thrown out by the presiding judge. While higher courts will likely look askance at the ruling, this setback for prosecutors means Mr Trump’s tactics have pushed his trial past the November election—if it ever begins at all.

Judge Aileen Cannon, appointed by Mr Trump in 2020, has been stretching out the calendar in the first of two lawsuits styled United States v Trump since she was randomly assigned to the case in June 2023. This week’s ruling contends that the prosecution was illicit from the start. Jack Smith, the special counsel, was handed his position in violation of the constitution’s “appointments clause”—the provision in Article II that requires “officers of the United States” to be nominated by the president and confirmed by the Senate.

The “critical constitutional restriction” on appointing officers is fundamental to America’s separation of powers, Judge Cannon writes. To allow Merrick Garland, the attorney-general, to tap a private citizen as special counsel “usurps” Congress’s role and dismantles a “structural liberty”. The “consequences of relaxing” the constitution’s strictures are “serious”, she concludes, before quoting a famous Supreme Court decision from 1952 that cautioned against “unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority”.

Judge Cannon’s 93-page opinion is technical and thorough. It reads, as she notes near the end, as if it was crafted “with care”. Yet the veneer is misleading. Her ruling is novel, it manhandles precedent and its implications are sweeping.

Attorneys-general have been appointing special counsels for decades with limited push-back and less judicial eyebrow-raising. Defending Mr Garland’s appointment of Mr Smith, the government pointed to two laws empowering such moves—traditionally taken when the impartiality of an investigation by the Department of Justice itself might be questioned. According to Title 28, section 533 of the US Code, the attorney general “may appoint officials…to detect and prosecute crimes against the United States”. Section 515 provides that lawyers “specially appointed” by the attorney general may “conduct any kind of legal proceeding”.

For Judge Cannon, neither suffices as a legal basis for Mr Smith’s appointment. She says it is “implausible” that Congress meant to “wedge appointment power for special counsels” into a statute that primarily concerns lower-level personnel. And, she reckons, Section 515 involves “already-retained attorneys”, not a “new appointment power”. Judge Cannon acknowledges that her interpretations differ from those of judges who have confronted the question in the past. Jurists on the District of Columbia Circuit Court of Appeals may have upheld special-counsel appointments in 1987 (for Lawrence Walsh in the Iran-Contra affair) and 2019 (for Robert Mueller’s investigation of Russian interference in the 2016 election), but their analysis just wasn’t good enough, it seems.

Judge Cannon then takes a red pen to a line in United States v Nixon, the Supreme Court decision involving the Watergate tapes. When the justices wrote that Congress empowered the attorney-general to “appoint subordinate officers to assist him in the discharge of his duties”, they weren’t announcing the law but writing “dictum”—basically, just jabbering. That turn is especially jarring in light of Judge Cannon’s reliance on last month’s concurring opinion by Justice Clarence Thomas in the other Trump v United States, the election-subversion case. Justice Thomas says there that Jack Smith may have been appointed illegally, and Judge Cannon follows his lead. But in contrast to US v Nixon, which was unanimous, Justice Thomas’s musings are his alone and do not carry the force of law; none of his eight colleagues co-signed his opinion.

At the Eleventh Circuit Court of Appeals, to which the government is expected to appeal, Judge Cannon’s ruling will probably face scepticism. That court, conservative as it is, has dressed her down for previous missteps. But the appeal will take months, may end up at the Supreme Court and will only matter if Mr Trump loses the election. Otherwise, charges for his document-stuffed bathroom and post-election plotting alike will disappear soon after the defendant takes his second oath of office.■

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