How Jack Smith might get Donald Trump’s classified docs charges reinstated

 

Former President Donald Trump’s criminal classified documents case was dismissed Monday, but that doesn’t mean it’s over. Within hours of the ruling, the Justice Department authorized an appeal, and several legal experts said special counsel Jack Smith may even try to get federal Judge Aileen Cannon off of the case.

Cannon agreed with Trump, who nominated her for the federal bench, that Smith’s appointment in the case violated a provision of the Constitution that requires “Officers of the United States” to be appointed by the president and confirmed by the Senate. Cannon wrote that Smith needed to be appointed that way unless Congress enacted a law that authorized the appointment.

Several legal experts characterized the ruling as a major outlier, arguing the decision contradicts a series of past court rulings approving special counsel appointments.

 

Cannon has issued a series of controversial pro-Trump rulings in the case and received a sharply worded rebuke on appeal.

“To me, the only question is whether the Special Counsel also asks for the case to be reassigned” to a different judge, wrote Georgetown law professor Stephen Vladeck on X, formerly Twitter.

“I have been suspicious of the ‘Judge Cannon is undermining the rule of law to protect Donald Trump’ line of argument,” New York University law professor Noah Rosenblum posted on X. “I hadn’t been following the case closely though. Now I feel very naive. This is bonkers. She is just making things up.”

After Cannon’s Monday ruling, calls for her removal from the case abounded.

“This finally gives Jack Smith an opportunity to seek her removal from the case. I think the case for doing so is very strong,” Harvard law professor Lawrence Tribe posted on X.

Peter Carr, a spokesperson for Smith’s office, said in a statement to USA TODAY that the Justice Department had authorized an appeal.

“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.

Trump praised the ruling, calling for an end to the “Weaponization of our Justice System” in a post on Truth Social.

What happens next

Smith’s expected appeal could drag on for months or more than a year, particularly if the Supreme Court decides to weigh in.

Smith will need to first appeal to the U.S. Court of Appeals for the 11th Circuit within 30 days. It will likely take at least months for that court to get briefs from both Smith and Trump, potentially hold oral arguments, and then issue a decision. If the Supreme Court takes the issue up, at a minimum the appeal would probably drag on for months.

That drawn-out timeline may only be relevant if Trump doesn’t become president. The Justice Department concluded in a 2000 memo that sitting presidents may not be indicted or criminally prosecuted while in office.

If Trump becomes president in January, questions about the fate of his classified documents case could become moot for years at least. Trump could − in a move that his opponents would likely call an assault on the rule of law − order the Justice Department to drop the charges and fire any attorney general who refuses to do so.

Could the Supreme Court side with Trump?

Some in the legal community did rise to defend Cannon’s ruling in the hours that followed, suggesting it could be upheld at the Supreme Court, which recently ruled that portions of the indictment against Trump in his federal election case will have to go based on the doctrine of presidential immunity from prosecution.

John Malcolm, who was a Justice Department official under George W. Bush and serves as vice president of the conservative Heritage Foundation’s Institute for Constitutional Government, said in a statement that Congress never passed a statute authorizing Attorney General Merrick Garland to appoint Smith.

Malcolm noted that Republican-appointed Supreme Court Justice Clarence Thomas recently appeared to invite judges to scrutinize the constitutionality of special counsels, writing that he wasn’t sure any special counsel’s office had been “‘established by Law,’ as the Constitution requires.”

“This serious issue, which Justice Thomas recently raised in his concurring opinion in the presidential immunity case, will finally receive the attention that it deserves and may well end up being resolved by the Supreme Court,” Malcolm wrote.

University of Minnesota law professor Ilan Wurman posted on X that no law “obviously suggests” Congress gave Garland the power to appoint Smith. “Judge Cannon’s ruling isn’t crazy, and it might even be right,” he said.

Departing from prior court rulings

Special counsels and their precursor, independent counsels, are not new. Both Democratic and Republican administrations have appointed them to oversee investigations with greater-than-usual independence, and courts have consistently upheld those appointments. An attorney general may hope to avoid the appearance of a conflict of interest on politically sensitive issues by appointing a special counsel.

Hunter Biden, for example, lost his efforts in his California tax-related case and in his Delaware gun-related case to challenge the appointment and funding of special counsel David Weiss. In 1974, the Supreme Court said Congress had vested the attorney general with the power to appoint special prosecutor Leon Jaworski during the Watergate scandal. Cannon said Monday the question of Jaworski’s authority wasn’t disputed or briefed, so the high court’s statement in that opinion didn’t constitute a ruling she is bound by.

When Garland appointed Smith to head investigations into Trump, he said the move underscored the Justice Department’s “commitment to both independence and accountability in particularly sensitive matters.”

Cannon has previously been strongly rebuffed by Republican-appointed appellate judges in relation to Trump. A panel of three Republican appointees reversed her decision to temporarily block investigators from reviewing documents seized from Trump’s Mar-a-Lago club, stating that her ruling involved “a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations” and violated “bedrock separation-of-powers limitations.”

Even before Monday’s decision, Cannon had indefinitely delayed a trial in the case, effectively guaranteeing Trump won’t face a verdict before the November election. She also asked lawyers on both sides of the case to weigh in on potential jury instructions that legal experts said would amount to dismissing the case entirely.

Cannon rejected suggestions from two other judges to step aside when the Trump documents case was first assigned to her, according to a New York Times report. The chief judge of Cannon’s own Southern District of Florida court, George W. Bush appointee Cecilia Altonaga, said it would look bad for Cannon to oversee the trial given the controversy surrounding the documents decision that was overturned on appeal.

Removing the judge?

Barbara McQuade, a former U.S. attorney, said on X the ruling “may actually be good news for Jack Smith, who can now immediately appeal to 11th Circuit and ask for case to be reassigned to a new judge.”

Norman Eisen, who was special counsel to the House Judiciary Committee during Trump’s first impeachment, posted on X that the 11th Circuit has a “multiple strikes and you’re out” rule.

“When a judge displays repeated & outrageous bias (at this point we have to conclude Cannon has) they will remove the jurist,” Eisen said. “Smith will likely ask for removal.”

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This article was originally appeared on USA TODAY