Statement by Bruce Fein on Judge Aileen Cannon’s dismissal of the Trump classified documents case

Lead-footed, ill-trained United States District Judge Aileen Cannon today dismissed the Espionage Act-Obstruction of Justice indictment against Trump in a 93-page caper that overruled the United States Supreme Court’s decision in Nixon v. United States and more than 50 years of practice in holding Special Counsel Jack Smith had been illegally appointed by the Attorney General with no statutory authority. The same argument was perceived as so anemic by Trump’s defense counsel in the January 6th prosecution that it has not been raised. Even Judge Cannon voiced doubts about her own zaniness. She expressly confined her order to her courtroom alone permitting the Special Counsel to continue litigation in the January 6th prosecution in the District of Columbia or elsewhere without breaking stride.

Then Acting Attorney General, Solicitor General Robert H. Bork, the most renowned and respected constitutional authority of his era, appointed special prosecutor Leon Jaworski to investigate President Nixon and aides for Watergate crimes in 1973. Jaworski litigated the Nixon tapes case in Nixon v. United States and prevailed. Among other things, the Supreme Court noted that Jaworski had been validly appointed under DOJ statutes and had standing to prosecute the case. If the Court harbored any doubt about Jaworski’s appointment on statutory grounds it would have said so to avoid addressing sui generis constitutional claims of Nixon under the doctrine of constitutional avoidance. But it voiced no such skepticism. Judge Cannon declared that the Supreme Court decision in Nixon regarding Jaworski’s appointment was a frolic that she could ignore—even if Jaworski was appointed by a giant in constitutional law—Robert Bork—whose constitutional wisdom exceeded Cannon’s by a factor or 1,000,000 to 1. Judge Cannon absurdly characterized Special Counsel Smith as a loose cannon empowered to investigate and prosecute Trump at will. She ignored the three thousand pages of DOJ regulations, policies, and practices compiled in 28 CFR that keep the Special Counsel on a very tight leash.

Smith should seek an immediate stay of Judge Cannon’s lunacy and an emergency appeal in the United States Court of Appeals for the Eleventh Circuit to summarily reverse her corrupt handiwork and seek her removal from the case for stupendous pro-Trump bias. The Court of Appeals has already rapped Judge Cannon’s knuckles for bizarrely appointing a special master to vet documents validly subpoenaed by Special Counsel Smith before they could be shared with prosecutors in Trump v. United States ( December 1, 2022). Further, Attorney General Merrick Garland should appear to argue the case for DOJ before the Court of Appeals. The time for complacency with Judge Cannon’s acting as Trump’s defense counsel is long past.

Bruce Fein