After Donald Trump won the 2024 presidential election, special counsel Jack Smith withdrew his appeal against him in the classified documents case, which U.S. District Judge Aileen Cannon had dismissed. The remaining question in the case, unlike in Washington where Trump was the lone defendant in the federal election interference case, was what would happen to the appeal that the government was technically still pressing against his former co-defendants, Walt Nauta and Carlos De Oliveira.
Now we have an answer. The Justice Department under Trump is moving to dismiss the appeal. It had seemed like it would either be that or that Trump would pardon the two men to get rid of the case for good.
Otherwise, the DOJ under Trump would be continuing to attempt to reinstate charges in the hopes of moving toward a trial that would center on the president’s alleged criminality involving the retention of national defense information. Trump had pleaded not guilty, as did Nauta and De Oliveira.
Cannon dismissed the documents case last year, reasoning that Smith was unlawfully appointed.
Indeed, Trump pleaded not guilty in all four of his criminal cases, with the only one of them that went to trial, in New York state court, resulting in a conviction that his lawyers are now appealing. Smith had moved to dismiss Trump’s two federal cases, based on DOJ policy against prosecuting sitting presidents.
Cannon dismissed the documents case last year, reasoning that Smith was unlawfully appointed. Now, assuming that the 11th U.S. Circuit Court of Appeals accepts the government’s unopposed appellate dismissal motion, Cannon’s dismissal against all three defendants will stand, without being tested on appeal or having been able to set a nationwide precedent on special counsels one way or the other. The pendency of the appeal against Nauta and De Oliveira had also been cited as justification for keeping Smith’s volume of his final report related to the documents case under wraps, so as not to prejudice the defendants in the event that their charges were reinstated and they went to trial someday. The case going away for good would therefore make the justification for shelving the documents volume go away. But it seems unlikely that the Trump DOJ that just moved to dismiss the case would willingly release a potentially damning report about it. 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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