Shakespeare once queried whether it was nobler to “suffer the slings and arrows of outrageous fortune, or to take arms against a sea of troubles.” Former President Donald Trump has experienced both.
Since the moment he descended the golden escalator in Trump Tower in 2015 to announce his first presidential candidacy until now, President Trump has been besieged by an onslaught of unconstitutional and unconscionable actors bent on destroying everything he espouses and eliminating the ideas and values he advances.
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Think about the unrelenting waves Mr. Trump has weathered on his “sea of troubles.” The Obama administration spied on his campaign. The media slandered his character in an elaborate scheme many Americans now refer to as the “Russia collusion” hoax. The House didn’t impeach him once, but twice (the second time when he was already out of office). January 6th became a charade to paint him and his followers as “insurrectionists.” Special Counsel Jack Smith’s unconstitutional investigation and its myriad indictments are nothing more than a quest to eliminate Mr. Trump’s candidacy. And this only scratches the surface.
Then, after none of those efforts proved successful, on July 13, 2024, President Trump miraculously escaped the slings and arrows of a would-be assassin’s bullet that grazed his ear, barely missing his head.
Though his encounter on Saturday was physical, it was not the only bullet he has escaped in recent weeks.
Mr. Trump is no stranger to legal attacks, especially given Manhattan District Attorney Alvin Bragg’s recent political prosecution that found him guilty of 34 counts in a New York criminal trial. But it is the historical significance of consequential rulings in the last three weeks, two from SCOTUS and the other by a district court in Florida that epitomizes a “fortune found” for the lawfare-weary Trump.
On June 28, 2024, in the Fischer v. United States decision, the Supreme Court overturned the Department of Justice’s attempt to supercharge minor acts of peaceful protesting (protected under the First Amendment) into supercharged felonies under the Sarbanes-Oxley Act. That ruling gutted Special Counsel Jack Smith’s efforts to imprison President Trump for his constitutionally protected speech on January 6, 2021.
Then on July 1, 2024, the Supreme Court issued its decision in Trump v. United States. It declared the former president absolutely immune from prosecution for his official acts in office. That decision, appropriately grounded in Article II of the Constitution, further eviscerated the Special Counsel’s quixotic quest to preclude President Trump from returning to the White House.
And then on Monday morning, sandwiched between an attempted assassination and Mr. Trump’s appearance at the Republican National Convention later that night, the United States District Court for the Southern District of Florida put the final nail in the coffin of the Special Counsel’s unconstitutional charade. In a triumph of textualism, Judge Aileen Cannon dismissed the Special Counsel’s unconstitutional lawfare in the Mar-a-Lago documents case against President Trump by holding that the Special Counsel’s appointment violated the United States Constitution.
Judge Cannon noted that President Trump’s challenge to Jack Smith’s authority “raise[s] the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution? After careful study of this seminal issue, the answer is no.”
Simply put, Attorney General Merrick Garland had no constitutional or statutory authority to appoint an unaccountable prosecutor unrestrained by the traditional constitutional requirements, and thus Jack Smith’s appointment and his prosecutorial power and actions have been unauthorized, unconstitutional, and unlawful.
Judge Cannon said this threatened the “structural liberty inherent in the separation of powers” and held that Special Counsel “Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme — the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law.”
In other words, Smith had no authority whatsoever to bring his unconstitutionally roving and ridiculous actions in the first place.
As former Supreme Court Justice Felix Frankfurter once noted, “the accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”
What began in Fischer v. United States and continued in Trump v. United States has culminated in Judge Cannon’s decision in United States v. Trump — Special Counsel Jack Smith’s appointment is built out of the same material as the clothes of Hans Christian Andersen’s infamous emperor.
The slings and arrows hurled at President Trump are both figurative and literal. Fortunately for President Trump, both have been rendered obsolete. The United States Secret Service took the wind out of the would-be assassin’s lungs on Saturday, and Judge Cannon took the wind out of Jack Smith’s unconstitutional sails on Monday.
Saturday’s attempted assassin was taken out by a sniper. Smith’s political and unlawful assassination on Trump suffered a higher caliber — Judge Cannon.
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Daniel Schmid is a constitutional attorney and the associate vice president of Legal Affairs with Liberty Counsel, an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family. Since 2012, Daniel has been on the front lines of litigating many critical First Amendment issues and has taught constitutional law at Liberty University School of Law.
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