This is an adapted excerpt from the July 15 episode of "José Díaz-Balart Reports."
The constitutionality of the special counsel position is an issue that has been litigated for many years, but no court has ever done what U.S. District Judge Aileen Cannon did Monday. With her decision to dismiss the federal classified documents case against Donald Trump and rule special counsel Jack Smith’s appointment unlawful, Cannon has found herself on a legal island.
With her decision to dismiss the federal classified documents case against Donald Trump and rule special counsel Jack Smith’s appointment unlawful, Cannon has found herself on a legal island.
Federal courts in the District of Columbia have clearly established case law on this issue, so Cannon’s decision in Florida should not have any immediate ramifications for Smith’s federal election interference case in D.C. But Monday’s decision isn’t exactly the end of the Florida case either. The Justice Department has already authorized the special counsel to appeal the order, and I expect that appeal to be heard. However, that route will take some time: a briefing schedule, oral argument and an eventual decision from an appellate court could be months away.
There is another, faster option on the table. Technically the Department of Justice could dismiss their case in the Southern District of Florida — although Judge Cannon has already done that for them — and refile elsewhere, like the District of Columbia. Venue, the place where a crime occurs, is an elastic concept. Many crimes occur in multiple places. I think there is a good faith argument that the classified documents case could have also been filed in the District of Columbia, where the crime is alleged to have begun, but that theory might invite a separate set of challenges.
All that said, I caution the Department of Justice to take into consideration the optics here. It's a bad look for the DOJ to judge-shop. That puts the department in a bad light. Typically, in litigation you are stuck with the judge you get — sometimes that’s a good draw, and other times it’s a bad draw. In my experience as a federal prosecutor, it’s mostly been good draws but, when you do get a bad draw, the only option is to carry on and do your job.
As we wait for Jack Smith's next move, one thing seems likely: what lies ahead is a long, hard slog for the Department of Justice.