UPDATE (July 17, 2024, 3:53 p.m. ET): Special counsel Jack Smith has filed a formal notice that the federal government is appealing U.S. District Judge Aileen Cannon’s dismissal of the classified documents case to the 11th U.S. Circuit Court of Appeals.
Special counsel Jack Smith will appeal U.S. District Judge Aileen Cannon’s dismissal of the classified documents case against former President Donald Trump. That’s unsurprising in the face of Cannon’s outlier ruling in this serious prosecution.
But the fact of the appeal — and the special counsel’s statement announcing it — are notable nonetheless.
As to the former, the government theoretically had other options, such as refiling the charges in Washington, D.C. Or it could’ve refiled in Florida through the regular U.S. attorney’s office, which wouldn’t have the appointments clause issue that Cannon found with Attorney General Merrick Garland’s authority to appoint Smith, who isn’t a Senate-confirmed U.S. attorney.
But in addition to separate legal issues with bringing the case in Washington (which may explain why Smith filed the case in Florida in the first place), going through the regular U.S. attorney in Florida wouldn’t eliminate having to deal with Cannon. Whether she can be removed from the case is a separate issue that could (but won’t necessarily) be addressed with this appeal.
Here’s what the special counsel’s office said Monday: 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. The Justice Department has authorized the Special Counsel to appeal the court’s order.
The first part of the statement highlights how out of step Cannon’s ruling is, going against the conclusion of other courts that have addressed the appointment issue. The second part is noteworthy in highlighting that the Justice Department authorized the appeal. In her ruling Monday, Cannon took issue with what she characterized as the department’s lack of oversight of Smith, so the special counsel’s statement reinforces the point that he can’t just do whatever he wants. Of course, neither of those points guarantee that Smith’s appeal will succeed, especially with the wild card that this Supreme Court has become, demonstrated most recently by the immunity ruling earlier this month. Underscoring that unpredictability, Cannon cited Justice Clarence Thomas’ concurrence from that case, in which he questioned the legality of Smith’s appointment, which wasn’t even an issue in the immunity appeal. No other justice joined Thomas’ concurrence, but we shouldn’t assume from that that Thomas is the only one who would endorse Cannon’s ruling if the case gets to the justices. But Smith’s launching the appeal puts the case on a course to prove Cannon’s ruling the outlier decision that it currently is or to make it the law of the land, courtesy of the Roberts Court.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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