Special Counsel Jack Smith formally appealed Monday the dismissal of federal charges against former President Donald Trump for allegedly mishandling White House documents, arguing U.S. District Judge Aileen Cannon “misconstrued” the law by dismissing the charges—but Smith did not ask for the Trump-appointed judge to be removed from the case.
ormer President Donald Trump speaks during a press conference at Mr. Trump's Mar-a-Lago estate on ... [+]
Prosecutors filed an appeal brief Monday at the 11th Circuit Court of Appeals, calling for the 40 felony charges against Trump to be reinstated after Cannon dismissed the case.
Cannon dismissed the case in July because she ruled Smith was unlawfully appointed, claiming the independent special counsel, who was selected by the attorney general, should have been appointed by the president and confirmed by the Senate.
The Supreme Court ruled in U.S. v. Nixon that attorneys general can appoint special prosecutors—functionally the same as a special counsel—Smith argued, and pointed to federal statutes that allow attorneys general to appoint “officials” to “detect and prosecute crimes against the United States” and “special attorney[s]” who can “undertake any civil or criminal proceedings.”
Cannon’s interpretation of federal law was “nonsensical,” Smith argued, claiming the judge also “erroneously disregarded” the history of attorneys general appointing special counsels, as well as other similar government appointments.
The special counsel asked for Cannon’s ruling to be overturned and for the criminal case to be sent back to district court to move forward to trial—but did not ask for Cannon to be removed from the case, even as the Trump appointee has faced widespread criticism for issuing rulings favorable to the ex-president.
Cannon’s rationale for dismissing the case “could jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch,” Smith argued.
Smith asked for the appeals court to schedule oral arguments in the dispute, though it’s unclear when they’ll hear the case and when any ruling on the criminal charges could come out. It also remains to be seen if Smith could file a separate motion down the line asking for Cannon to be removed from the case, even though he hasn’t now.
Trump campaign spokesman Steven Cheung said in a statement to Forbes Monday that “not only should the dismissal of the Lawless Indictment in Florida be affirmed, but be immediately joined by a dismissal of ALL” the cases against Trump, decrying them as “Political Attacks” designed to interfere with the election. The ex-president has pleaded not guilty to the charges against him in the documents case and slammed Smith as a “thug.” Tge said earlier in August he intends to sue the Justice Department for the search it carried out at his Mar-a-Lago estate in connection with its investigation into him retaining White House documents, asking for $100 million in damages and $15 million to cover his attorneys fees in the documents case. He still has to wait before he could formally file a lawsuit, however, given federal rules that require giving the government enough time to respond before lawsuits against it are brought.
How the election will impact the criminal case. The appeals process won’t play out in time for the criminal case to go to trial by the election if the charges are revived. If Trump wins the election, it’s expected the case won’t go to trial at all, as he could appoint officials at the DOJ who would have the appeal and federal charges dropped.
Trump was indicted in the federal documents case after federal investigators recovered more than 11,000 White House documents from Mar-a-Lago, including 325 marked classified. The ex-president was charged with withholding national security documents as well as obstruction, as prosecutors alleged Trump intentionally tried to conceal classified documents and stop them from being handed over to the government. Trump has claimed he had the authority to bring the documents back to Florida with him, even though federal law states presidential documents become the property of the National Archives when a president leaves office. Attorney General Merrick Garland appointed Smith in November 2022 to oversee the federal government’s cases against Trump, in order to have a third-party prosecutor managing the case given that Trump was President Joe Biden’s political opponent. Smith also brought charges against Trump for trying to overturn the 2020 election, and that case is unaffected by Cannon’s ruling.