A judge's stunning decision to dismiss the classified documents case against Donald Trump brought an abrupt halt to what experts have considered the strongest and most straightforward of the prosecutions of the former president. But it's hardly the final word.
Special counsel Jack Smith's appeal of U.S. District Judge Aileen Cannon's order is expected to tee up a court fight that might reach the U.S. Supreme Court and could result in the reinstatement of the indictment and even conceivably the reassignment of the case to a different judge.
There’s no scenario in which a revived prosecution could reach trial before the November election — and it presumably won’t take place at all in the event Trump is elected president and orders his Justice Department to dismiss it. Still, Cannon’s order ensures many more months of legal wrangling in a criminal case that became snarled over the last year by interminable delays.
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“The only good thing about this is that it is finally a decision,” said Nancy Gertner, a former federal judge in Massachusetts who was nominated to the bench by President Bill Clinton, a Democrat. “The difficulty with Judge Cannon has been that she has made no decisions. She has simply sat on the case. And since she has made no decisions, there was nothing to appeal."
The judge's 93-page order held that Smith's selection as special counsel violated the Constitution because he was named to the position directly by Attorney General Merrick Garland instead of being appointed by the president and confirmed by the Senate. Prosecutors vigorously challenged that argument when it was raised by Trump's lawyers, and filed a formal notice of appeal Wednesday to initiate the process.
It's impossible to say whether the opinion will stand or be reversed on appeal, though other judges in other districts in recent years have reached opposite conclusions of Cannon, upholding the constitutionality of special counsels who were appointed by Justice Department leadership and funded by a permanent indefinite appropriation.
The Supreme Court, in a 50-year-old opinion involving President Richard Nixon, held that the Justice Department had the statutory authority to appoint a special prosecutor.
And even though Supreme Court Justice Clarence Thomas raised questions this month about the legality of Smith's appointment, no other justice signed onto his concurring opinion in a case conferring broad immunity on former presidents.
The Smith team is likely to point to all of those court holdings in casting Cannon to the Atlanta-based 11th U.S. Circuit Court of Appeals as an outlier who made not just a bad decision but one requiring swift reversal, said Michael Gerhardt, a University of North Carolina law school professor.
A spokesman for Smith's office, in announcing Monday that the Justice Department had authorized an appeal, said the opinion “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.”
But Jesse Panuccio, a former associate attorney general in the Trump administration Justice Department, said anger over Cannon's opinion — which he called a "careful and scholarly" analysis — was misplaced.
“If you took out of the equation the derangement that comes from anyone analyzing anything that has to do with Trump and you just asked legal scholars 10 years ago, ‘Hey, are there any issues involving independent counsels, special counsels?’" he said, the answer would be yes.
Panuccio added: “I think this is a very serious issue, and it’s an issue frankly that when I was at the Justice Department, I had reservations about."
Trump on Monday said the dismissal “should be just the first step” and the three other cases against him, which he called “Witch Hunts,” should also be thrown out.
Cannon, a Trump appointee, has exasperated the Justice Department since even before the indictment was filed, meaning if prosecutors do seek her removal, they could presumably cite a laundry list of grievances with her handling of the case.
Weeks after the FBI searched Mar-a-Lago for classified documents in August 2022, Cannon granted a Trump team request to appoint an independent arbiter to review the seized records — a decision later overturned by a unanimous federal appeals panel. In April, prosecutors rebuked Cannon over potential jury instructions she floated that they said rested on a “fundamentally flawed legal premise.”
It is unclear if Smith's team will seek to have Cannon reassigned in the event that the appeals court reinstates the case. A Smith spokesperson declined to comment Tuesday on that possibility. It's an unusual request and one prosecutors in this case had avoided making.
But there is precedent for appeals courts taking that step, including in the same judicial district where the Florida case was charged.
“I think it would be quite a statement if the Circuit Court removes her from the case, but I think in this instance it would be warranted,” said Cheryl Bader, a Fordham University law school professor and former federal prosecutor. "There does seem to be a pattern of Judge Cannon bending over backwards to create delay and obstacles."
In 1989, the 11th Circuit reinstated a criminal case in Florida of a man charged with trafficking counterfeit Rolex watches and reassigned the case to another judge after the trial judge described the case as “silly” and a waste of taxpayers' money.
The court laid out three considerations for deciding whether to assign a case to a different judge, including whether such a move is “appropriate to preserve the appearance of justice" and “whether the original judge would have difficulty putting his previous views and findings aside.”
Gerhardt, the North Carolina professor, said he did not see a downside to Smith's team making such a request.
“Judges do make bad decisions sometimes,” he said. “But not good judges do it more often than they should, and she’s done it more often than any judge should.”
But Panuccio said he didn't think Cannon's order gave Smith's team sufficient cause to complain, especially given that Cannon's position was backed by a member of the Supreme Court.
“I think Jack Smith would be flirting with fire if he were to make that request based on this opinion simply because he lost an issue,” he said.
