Special counsel lodges appeal to revive Trump classified documents case

(CN) — Special counsel Jack Smith notified a federal judge Wednesday that he plans to appeal her dismissal of former President Donald Trump’s classified documents case to the 11th Circuit.

Smith’s brief appeal notice, which will precede a formal appeal from the special counsel, comes just two days after U.S. District Judge Aileen Cannon abruptly tossed the indictment by ruling Smith had been unlawfully appointed by U.S. Attorney General Merrick Garland.

Smith indicated Monday that he planned to appeal Cannon’s bombshell ruling. In a statement from Smith’s spokesperson Peter Carr, the special counsel’s office chided Cannon’s ruling as inconsistent with all other courts that have heard the issue.

“The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the attorney general is statutorily authorized to appoint a special counsel,” Carr said in the statement. “The Justice Department has authorized the special counsel to appeal the court’s order.”

Cannon, who was appointed to the bench by Trump in 2020, wrote in her Monday ruling that an officer like Smith should have been appointed by the president and confirmed by the Senate, not appointed by Garland as Smith was.

“The superseding indictment is dismissed because special counsel Smith’s appointment violates the appointments clause of the United States Constitution,” U.S. District Judge Aileen Cannon wrote in her 93-page order.

Trump pleaded not guilty last year to 40 criminal charges related to his handling of classified documents after losing the 2020 presidential election. Prosecutors accused Trump of illegally stashing the files at his Mar-a-Lago residence in South Florida, then bucking federal efforts to recollect them.

The case will now head to the 11th Circuit, where Cannon has been overturned in these proceedings before. In 2022, she kneecapped prosecutors by requiring them to run the seized documents through a third party before using them in the case.

The federal appeals court quickly and unanimously overturned that ruling, finding that affirming Cannon’s decision “would be a radical reordering of our case law limiting the federal courts’ involvement in criminal investigations.”

Legal analyst Jeffrey Evan Gold, a criminal defense attorney at the New Jersey-based Helmer, Conley & Kasselman, said in an interview Wednesday that Cannon is likely in for a similar fate this time around.

Gold noted that previous judges have unanimously rejected Cannon’s argument, finding that attorneys general have the power to appoint special counsels. Gold said he was shocked that Cannon rolled the dice with Monday’s controversial dismissal, particularly since she had been overturned once already in this case.

“District judges follow the law,” Gold said. “They don’t take chances to get reversed, especially if they’ve been reversed already, then they’re extra cautious.”

Still, Gold acknowledged that the Atlanta-based 11th Circuit is a “conservative” court, and was hesitant to say that Smith’s appeal was a layup for prosecutors.

It could take a while, too, Gold added. Appellate court slows to a crawl in the summer, so if this was a normal case, Gold said the court might not hear arguments until the fall.

“But it could be expedited here,” Gold said.

Critics of Cannon hope a second appellate reversal will give prosecutors the teeth to have her tossed from the case. But that would likely be another arduous appellate process that might not wrap until after the presidential election in November.

The Republican judge has already raised the eyebrows of legal experts when she indefinitely delayed this case’s trial date in May, and reportedly bucked calls from fellow judges to step down from the case altogether because of her inexperience and purported ties to Trump.

Her Monday dismissal was the latest legal lifeline for Trump, who had several of his criminal proceedings delayed on the heels of the U.S. Supreme Court’s ruling for broad presidential immunity earlier this month. The landmark immunity decision even held up Trump’s sentencing in his New York hush-money trial, which was supposed to take place last week and has since been pushed to September.

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