Special Counsel Jack Smith has asked a federal appeals court to overturn U.S. District Judge Aileen Cannon’s dismissal of charges against former President Donald Trump on suspicion of secret documents. Prosecutors are not seeking to remove the judge from the case, however.

The appeal, filed Monday, argues that Cannon erred in dismissing the charges on the grounds that Smith was illegally hired to prosecute Trump, a case in which the former president faced 40 charges related to allegations that he withheld classified documents after leaving the White House in January 2021.

Cannon dismissed the case on July 15, a move that confused many legal experts and fueled accusations that the Trump-appointed judge was biased against the former president. But in his appeal on Monday, Smith refrained from requesting that Trump’s charges be transferred to another judge, a decision that MSNBC analyst Barbara McQuade told Newsweek was probably done in an effort to restore public confidence in the Justice Department, which had been ruined in recent years.

“Calling for the dismissal of a judge on the grounds of bias is a very serious allegation,” said McQuade, a former U.S. attorney for the Eastern District of Michigan, Newsweek by email on Monday. “A judge’s decision against your position does not make her biased.”

“In this case, the decisions were so far outside the norm that I think Smith had to at least consider making this request,” McQuade added. “However, a consistent theme of this administration has been an attempt to restore the Justice Department’s independence and public trust. Asking the court to remove Judge Cannon would have led critics to accuse the Justice Department of engaging in partisan politics.”

Smith wrote in his petition to the 11th U.S. Circuit Court of Appeals that Cannon’s firing was “contrary to widespread and longstanding appointment practices in the Justice Department and across the government.” Prosecutors also wrote that if the ruling stands, it could “jeopardize the longstanding work of the Justice Department and call into question hundreds of appointments across the executive branch.”

“The Attorney General has legally appointed the Special Counsel and has the necessary financial resources,” the appeal states. It also refers to four applicable laws that relate to the Attorney General’s authority to appoint special counsels.

There is a chance a federal appeals panel could remove Cannon from the case in its decision, and McQuade added that “lines of argument may differ” on whether Smith made the “right decision” in not requesting a new judge. But former federal prosecutor and elected state Attorney General Michael McAuliffe said any decision on reassigning judges would be independent of the main argument at hand.

“The special counsel’s primary goal is to win the appeal and have a case to take to court,” McAuliffe wrote in an email to Newsweek on Monday.

“The substance of Judge Cannon’s order is the subject of appeal and legal opinion,” he added. “The question of reassignment is not yet ripe. The case must be reinstated by a reversal of the trial court’s dismissal before the Court of Appeals can or may consider a question of reassignment.”

Former federal prosecutor Neama Rahmani agreed that Smith’s “immediate focus” must remain on overturning Cannon’s dismissal.

“The burden of disqualifying Judge Cannon is higher, and Smith may not want to fight that fight right now,” Rahmani said Newsweek by email. “Disqualification of a trial judge is appropriate when his conduct could reasonably create the appearance of impropriety or lack of impartiality. Cannon’s surprise decision is another bad decision by a bad judge.”

“At some point the Eleventh Circuit may have to step in and remove her. But Smith wants to pick his battles now, so that’s an argument for another day,” he added.

Several experts have expressed doubts about Cannon’s reasoning for dismissing the case. Legal expert Norman Eisen, who served as counsel to the House Judiciary Committee during Trump’s first impeachment trial in 2019, called Cannon’s order “completely unlawful” in a series of social media posts on Monday, adding that in his opinion the 11th Circuit “should” remove the judge from the case.

Rahmani also expressed doubts about Cannon’s decision and wrote to Newsweek He said he was “stunned” that the judge had declared Smith’s appointment unconstitutional.

“Although Cannon says it is limited to this case, her ruling raises questions about the appointment of special counsels in other cases, particularly the Hunter Biden case,” Rahmani said. “She easily could have dismissed the presidential immunity case instead of ignoring decades of precedent by saying Smith’s appointment was unconstitutional.”

He added that he “would not be surprised if her ruling were overturned by the Eleventh Circuit, which would be her third overturn in the Trump case.”