In the latest sign that Donald Trump’s federal criminal cases could disappear before he even takes office, special counsel Jack Smith asked to pause the government’s appeal in the classified documents case. Smith’s request follows a similar one he made to U.S. District Judge Tanya Chutkan in the federal election interference case last week, which Chutkan granted.
Like in the federal election interference case, Smith asked the 11th U.S. Circuit Court of Appeals on Wednesday for a pause until Dec. 2, “to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy.” The special counsel noted in his brief motion to halt the appeal that: “As a result of the election held on November 5, 2024, one of the defendants in this case, Donald J. Trump, is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025.”
Smith’s latest filing reminds us that there are important differences between the election interference case and the classified documents case.
According to the existing schedule, Smith’s reply brief — the final filing before the court would rule or hold oral argument and then rule — is due Friday. He asked the appeals court to pause that deadline and said that, if the court agrees to pause the appeal, “the Government will inform the Court of the result of its deliberations — and, if appropriate, file its reply brief — no later than December 2, 2024.” (Unsurprisingly, Smith noted that the defendants don’t object to the government’s request.)
So if the appeals court grants the request, then the next step in both federal cases is to hear from the government by Dec. 2 about its plans. The special counsel and his team are reportedly planning to resign before Trump takes office, which would be consistent with the apparent moves toward winding down the cases.
But Smith’s latest filing reminds us that there are important differences between the election interference case and the classified documents case. In the former, Trump is the only defendant charged and it’s in the trial court after the Supreme Court sent it back to Chutkan following its immunity ruling. In the latter, Trump is one of three defendants charged and it’s in the appeals court, where Smith is challenging U.S. District Judge Aileen Cannon’s dismissal of the case on the grounds that Smith was unlawfully appointed.
So in the documents case, the government has additional factors to consider. It has to figure out whether it will abandon an appeal of Cannon’s unprecedented ruling that implicates broader Justice Department prerogatives of attorneys generals’ ability to appoint special counsels. (To be sure, Cannon’s trial-level ruling is not binding precedent in any future special counsel challenges that arise.) It also has to address the issue of Trump’s two co-defendants standing to escape from potential reinstatement of the case against them due to the fact that their co-defendant will be president again. Like in the election interference case, Smith holding firm would be delaying the inevitable, because Trump would use his newly reacquired power of the DOJ, his pardon power — or both — to get rid of the federal cases by whatever means necessary. But in the meantime, these additional factors could yield a more nuanced position from the government in the documents case. We’ll see what the appeals court says (presumably granting the unopposed request), what Smith says by Dec. 2, and — in what’s perhaps the main lingering question at this point — whether and when we see a report from the special counsel’s investigation before he resigns or, if he doesn’t, before Trump fires him within “two seconds,” as the president-elect said he would. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
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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