Judge Aileen Cannon followed the playbook from Thomas’s solo opinion in the Trump immunity case.
A federal district court dismissed the indictment against Donald Trump for taking classified documents when he left the White House, ruling on Monday that the special counsel who indicted the former president was not constitutionally appointed. Judge Aileen Cannon’s 93-page decision will almost certainly be appealed, but it virtually guarantees the case will not see significant progress before the election in November.
To rule as she did, Cannon had to sidestep longstanding Supreme Court precedent about independent prosecutors, which she decided was not precedent at all but instead mere “dictum” that need not be followed. This was precisely the path outlined by conservative Justice Clarence Thomas earlier this month in a decision regarding Trump’s prosecution for his role in the January 6 insurrection, where the constitutionality of the special counsel’s appointment was not even at issue.
None of the other Supreme Court justices signed onto Thomas’s concurring opinion, but Cannon cited it three times.
“Justice Thomas’s ‘Cannon-currence’ worked,” law professor Leah Litman tweeted after Cannon’s ruling came out. “In the Trump immunity case, Justice Thomas wrote separately to suggest the special counsel was unlawfully appointed; the reasoning laid out the roadmap for this (wrong) result/decision.”
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