After Miami court dismisses trial: "Trump is not free and clear yet"

Donald Trump, who is running for office again this year, has had a turbulent last couple of weeks. First, the Republican was almost killed in an assassination attempt during a campaign event in Pennsylvania. Then, Trump's competitor for office, current US president Joe Biden, stepped down from his candidacy, likely promoting current Vice-President Kamala Harris to being the presidential candidate for the Democrats. Now there is a new and uncertain dynamic in the presidential race. What could hurt Trump most is another criminal conviction. He has already been found guilty in a New York state court of falsifying business records in order to influence a federal election. Those charges relate to the money Trump paid Stormy Daniels to keep their sexual affair secret during the 2016 presidential campaign. Apart from that, Trump is currently on trial in three other cases, two of them involving the "Big Lie" that the presedential election 2020 was “stolen.”

Additionally, before a federal court in Florida, Trump had been accused of mishandling classified documents after his time in office. Last week, however, the court dismissed the case.

Prof. Miller, Donald Trump now has one criminal trial less to worry about, after a Florida court dismissed his case. What reason did the court provide for its decision?

The judge concluded that the entire process was corrupted because Special Prosecutor Jack Smith had been illegally appointed to investigate and prosecute the charges against Trump.

What is the function of a Special Prosecutor? When and for what purpose was that position introduced?

It is an independent prosecutor who is named by the Attorney General if he or she is convinced that significant criminal issues involving high-level government figures requires it. The Special Prosecutor works apart from and without cooperating with the regular, professional prosecutors at the Department of Justice (DoJ).

The function was introduced in new Congressional legislation in the 1970s after the Watergate Affair to avoid things like the "Saturday Night Massacre." That's when President Nixon ordered the Attorney General to fire the prosecutor in charge of the Watergate investigations. 

Since then, Independent Prosecutors have been appointed to lead a number of investigations, including the allegations that led to the impeachment of Bill Clinton in 1998.

The Miami judge objected to Smith's appointment as Special Prosecutor. What did she say went wrong? 

In the judge's opinion, Jack Smith was illegally appointed to serve as the Special Prosecutor in the Florida case. The Special Prosecutor has the status of an "inferior officer" under the constitution and the constitution says very explicitly that statutory authorization is necessary for the appointment of inferior officers.

Has Smith been illegally appointed?

What does 'statutory authorization' involve?

It essentially means that you need a basis in formal – statutory – law to appoint someone as an "inferior officer". The person appointing the officer – in this case the Attorney General – may not appoint an inferior officer – in this case the Special Prosecutor – without statutory authorization. It is similar to the principle of Gesetzesvorbehalt in German law. That’s the principle that requires public authority to act pursuant to a statutory mandate.

So, there is no statutory law allowing the Attorney General to appoint someone as Special Prosecutor?

The old statue from the 70s establishing the Independent Prosecutor expired in 1999. The position was recreated by internal DoJ regulations. So since 1999, these regulations served as the legal basis for the appointment of Special Prosecutors as, for example, Robert Mueller who investigated the allegations that Trump's 2016 campaign colluded with the Russians.

And Jack Smith?

Yes, he has been appointed under the same scheme to investigate and prosecute Trump, first in Washington DC for meddling with the 2020 election, and second in Florida for mishandling classified documents after leaving the White House.

So, the judge has got a point?

It is controversial. The Attorney General can point to some vague statutory language as the justification for the appointment of a Special Prosecutor. For example, 28 U.S. Code § 515(b) refers to "each attorney specially retained under authority of the Department of Justice." But the judge was not convinced. That provision of the law, she reasoned, doesn't refer specifically to the formal position of a Special Prosecutor and is intended for a less consequential figure. She concluded that there isn't an adequate statutory basis for the appointment of a Special Prosecutor and this, in turn, means Smith's appointment is a violation of the constitution.

Is Trump immune from prosecution in "election fraud" cases?

If Smith's appointment was indeed unconstitutional, wouldn't that be true as well in the other criminal proceedings against Trump? Would these cases need to be dismissed, too?

If the judge in the Florida case is right about the law, then the same issue would infect the investigation and prosecution Jack Smith is leading in Washington DC. That's the main federal criminal case involving Trump's refusal to accept the election results. But it is possible that the judge in Washington DC could reach a completely different conclusion about the constitutionality of Smith's appointment. Then we'd have two courts saying opposite things about the same statutory and constitutional law. 

There is a chance of disagreement between the Florida and Washington DC judges because it is widely accepted that Judge Cannon in Florida is strongly sympathetic to Trump, who appointed her to the federal bench. Many commentators in the media think judge Cannon seized upon this issue as the way to dismiss the case, but they’re convinced she was going to find some way to do that. If they are right, then maybe her reasoning in the dismissal ruling is questionable and won't survive appellate review.

After the Supreme Court's recent decision granting the president immunity from prosecution, is the Washington DC case still active?

That's not clear yet.

Earlier this month, the Supreme Court ruled that the president has some immunity from criminal prosecution. It created a three-part rule. First, the Supreme Court explained that the president’s immunity is absolute when a criminal case involves his exercise of core constitutional competences. Second, the Supreme Court explained that other "official acts" are at least owed a presumption of immunity. Third, the Supreme Court explained that the president’s purely private conduct is not owed any immunity. 

The Supreme Court didn't apply this rule to the Washington DC case but instead sent the case back to the first-instance court where the facts should be developed to determine what Trump is accused of doing so that the court can apply the new rule and determine whether that conduct is owed immunity, either as a core competence or as an "official act." 

Was Trump "acting as the President or as a candidate" on January 6th?

So, if the Miami ruling holds and the Washington DC court views the conduct for which Trump is charged as official acts, then his criminal cases would just go away?

It is important to remember there are two more criminal cases against Trump, both on state-level. There is the New York "hush money" case for which Trump has already been convicted. And there is another "Big Lie" case taking place in Georgia, where Trump is accused of tampering with the 2020 election results.

For both cases, Jack Smith's appointment doesn't play a role. It is only relevant to the federal criminal cases he is leading. The state cases in New York and Georgia are being led by state and local prosecutors and having nothing to do with the Special Prosecutor position in the DoJ.

But they could be affected by the Supreme Court's immunity ruling?

They could, yes. The Supreme Court's immunity ruling, having established a general rule of federal constitutional law, applies to all the criminal charges against Trump, whether in federal or state courts.

Whether they are affected, will be determined by applying the three-part rule. Each court now has to develop and review the facts in order to determine whether the conduct that Trump is charged with counts as "official" or "private" conduct. The Supreme Court suggested that actions taken as a candidate or party leader would likely be regarded as private. That was Trump's status in relation to the "hush money" case in New York. Maybe he won't have the benefit of immunity for that case and those convictions will survive. It's much harder to sort out in the Washington DC case. 

Is it an official presidential act to falsely claim a democratic election had been "stolen"?

That's a misleading question. The criminal charges in the Washington DC case are narrower and more concrete than that. Trump isn't charged with "lying about a stolen election." Instead, he is charged with conspiracy to defraud the United States, witness tampering, conspiracy against the rights of citizens, and obstruction of and attempt to obstruct an official proceeding. The questions are: what specific actions did Trump take, can they support the elements of these crimes, and should he be immune when taking those actions because they involve "official conduct."

The Supreme Court suggested that Trump’s communications about the "Big Lie" with his Attorney General should be viewed as core constitutional competences that are owed absolute immunity. The Court seemed to think that Trump’s communications with Vice President Pence about certifying the election results in Congress counted as official conduct owed a presumption of immunity. But the Supreme Court said the first-instance court would have to develop the facts and determine whether Trump’s speeches and tweets on January 6th count as official or private conduct. Was he acting as the President or as a candidate? These complicated issues will have to be sorted out in the Florida federal case and the Georgia state case as well.

"It's still only half-time"

So how would you describe the current situation? So far, all seems to be going Trump's way.

Trump is getting some profound wins in these early phases of the criminal cases. But he is not free and clear yet. If you're keeping score, then I think it's fair to say that Trump has more goals scored at this point than the various prosecutors, although the New York hush-money convictions count for a lot. But it's still only half-time.

That's also true for the Florida case now that it's clear that Special Prosecutor Smith will appeal the ruling dismissing the case. However, Similar to judge Cannon in the first-instance trial court, Trump can expect sympathetic judges in this second-instance court as well. The Eleventh Judicial Circuit is viewed as fairly conservative. And, it is one of the federal appeals courts to which Trump appointed the most judges during his tenure as President. I would expect special prosecutor Smith's appeal to fail in the Eleventh Circuit. 

You might say the same thing about the Supreme Court, which could eventually hear the case after the Eleventh Circuit rules. Trump has fared pretty well with the Supreme Court's conservative majority, which he helped to build with three appointed justices during his time in the White House. But that's just a rough political assessment and not a comment on the complex legal issues involved in the case.

But maybe all of this misses the most important point. 

Which is?

Whether Trump wins or loses on these technical legal questions in the end, the issues have caused significant delays in the cases. It is now obvious that he won't face these criminal trials, let alone a new set of convictions, before the election in November. And, if he is re-elected to the White House, Trump might just use the president's pardon authority to pardon himself in the federal criminal cases.

Prof. Miller, thanks for your time.

It was a pleasure.

Russell Miller is the J.B. Stombock Professor of Law at W&L University (Virginia) where his teaching with a research focus on public law and comparative law subjects. He is co-founder and co-editor of the German Law Journal and he is a frequent fellow at German research institutes and law faculties. From 2020-2022 he was the Head of the Max Planck Law Network.