How Clarence Thomas laid groundwork for Trump's classified documents case being dismissed

A federal judge's controversial move to throw out the charges against former President Donald Trump in his long-running classified documents case on Monday may have been inspired by a legal aside by Supreme Court Justice Clarence Thomas two weeks earlier.

On July 1, Thomas joined the high court's conservative majority in dramatically expanding the scope of presidential immunity for crimes committed in office. But he also, in his separate, concurring opinion, lit the fuse on U.S. District Judge Aileen Cannon's Monday bombshell.

Thomas, the court's longest-serving justice, suggested that the appointment of special counsel Jack Smith − who is prosecuting both the classified documents case and a separate election interference case − was unconstitutional.

This previously marginal notion, that special counsels − used for decades by administrations from both parties − are illegitimate without specific legislation or Senate confirmation, had been raised by Trump in Cannon' Florida courtroom.

On July 15, Cannon cited Thomas' argument four times when dismissing the charges.

More: How Jack Smith might get Donald Trump's classified docs charges reinstated

“This is an aggressive ruling,” Jonathan Adler, a law professor at Case Western Reserve University, told USA TODAY. “The ruling calls into question a broad range of Justice Department appointments. I’m not sure she got it right on the merits.”

Thomas “laid the table and Judge Cannon took a seat,” NYU law professor Melissa Murray wrote on social media.

From Supreme Court aside to Florida bombshell

Supreme Court justices usually issue opinions only on the question before them, but Thomas is known for using his written opinions to raise issues that aren't before the court.

In his immunity opinion, he wrote, “I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”

If there is “no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution," Thomas added. "A private citizen cannot criminally prosecute anyone, let alone a former President.”

Trump is charged with hoarding classified documents taken from the White House at his private club in Florida and asking employees to erase security camera footage of documents being hidden away from investigators.

Cannon − a 2020 Trump appointee who had already made several widely criticized pro-Trump rulings in the documents case − had signaled openness to this argument by holding a hearing on the constitutional question, an unusual measure for a district court judge.

Cannon agreed with a group of conservative legal thinkers who filed briefs with the court, ruling that Smith’s office in the Justice Department was unconstitutional – to howls of derision from many legal commentators who said the decision was likely to be reversed.

Trump, coming off his brush with death after Saturday's failed assassination attempt in Butler, Penn., celebrated "this dismissal of the Lawless Indictment in Florida" and called for the other criminal and civil cases against him to be thrown out.

Clarence Thomas and 'persuasive authority'

Adler, a conservative legal scholar, noted that when a constitutional question hasn’t been settled by the Supreme Court or their regional appellate court, lower-level district judges like Cannon are left to stand on less certain legal ground.

The legality of a special counsel “is something that there is no controlling authority on,” he said. Absent controlling authority, “judges cite what we call ‘persuasive authority’ all the time,” in this case, Thomas’s July 1 opinion.

While Adler said there is nothing abnormal about a judge citing a lone Supreme Court justice's concurrence in that situation, he added, “I’m skeptical that she’s right. I would not be surprised to see her decision overturned.”

Other legal eagles say the constitutionality of special counsels was established decades ago, when the Supreme Court turned away President Richard Nixon’s challenge to a special counsel investigating the Watergate affair.

More: Trump rejects Jack Smith's authority in classified documents case hearing

In 2019, a Washington, D.C. appellate panel shot down a challenge to special counsel Robert Mueller’s investigation of Russian interference in the 2016 election on the same grounds.

But Cannon had legal firepower of her own, citing Thomas in her ruling that the Supreme Court’s decision in the Nixon case was “dictum,” an opinion that didn’t set a legal precedent, thus opening the door for her to dismiss the prosecution.

Constitutional 'spidey sense'

Thomas “has a long habit of writing separate opinions that flag constitutional issues that are not before the court,” Adler said.

None of the other eight justices signed onto Thomas' his opinion questioning the legality of Smith’s office – a possible suggestion that, if the conservative 11th Circuit Court of Appeals reverses Cannon’s decision, Trump may not get relief from the high court.

This, some scholars say, raises the question of why Cannon went forward.

“Following what one justice says when the others aren’t on board, staking out a position that’s disruptive… Judges would not typically go out on a limb, because it’s going to be reversed – and most judges don’t like to be reversed,” said Sam Erman, a former clerk to Justice Anthony Kennedy who teaches at the University of Michigan Law School.

In cases like this, he added, “your constitutional law spidey sense tingles. You say, ‘What’s going on?’”

But Cannon is not most judges: her moves in the documents case have come under harsh scrutiny.

She's raised eyebrows since the first days of the case. Her order freezing the documents investigation was overturned in a sharp opinion by a unanimous panel of Republican appointees on the 11th Circuit Court in December 2022.

One thing is certain: Cannon's most recent decision is good for the Republican presidential nominee. Even if her ruling is overturned and the charges reinstated, it won't happen before Election Day.

“I have no particular insight into Judge Cannon’s motives,” Erman said. “But she’s made a series of decisions that ensure this case isn’t going to be tried until after the election.”

This article originally appeared on USA TODAY: Dismissal of Trump docs case inspired by Clarence Thomas, experts say