Jack Smith appeals Trump’s secret documents case
Top line
Special Counsel Jack Smith on Monday formally appealed the federal court’s dismissal of the indictment against former President Donald Trump over alleged misuse of White House documents, arguing that U.S. District Judge Aileen Cannon “misinterpreted” the law in throwing out the charges. But Smith stopped short of calling for the Trump-appointed judge to be removed from the case.
Former President Donald Trump speaks during a press conference at Trump’s Mar-a-Lago estate on … (+)
Key data
Prosecutors filed an appeal with the 11th Circuit Court of Appeals on Monday, asking for the 40 counts against Trump to be reinstated after Cannon dismissed the case.
Cannon dismissed the lawsuit in July, arguing that Smith was improperly appointed. She argued that the independent special counsel 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 — who are functionally the same as a special counsel — Smith argued, pointing to federal laws that allow attorneys general to appoint “officers” to “investigate and prosecute crimes against the United States” and “special prosecutors” who can “conduct civil and criminal proceedings.”
Cannon’s interpretation of federal law was “nonsensical,” Smith argued, claiming the judge also “wrongly disregarded” that attorneys general have appointed special counsel and similar positions in the government in the past.
The special counsel asked that Cannon’s conviction be overturned and the criminal case sent back to district court for further proceedings. But he did not ask that Cannon be removed from the case, even though the Trump-appointed special counsel has been widely criticized for his rulings that favored the former president.
Key quote
Cannon’s reasoning for dismissing the case “could jeopardize the years of work of the Justice Department and call into question hundreds of appointments across the executive branch,” Smith argued.
What you should pay attention to
Smith asked the appeals court to schedule oral argument in the dispute, although it is unclear when the case will be heard and when a verdict on the charges might be reached. It also remains to be seen whether Smith might later file a separate motion asking that Cannon be removed from the case, although he has not done so so far.
Main critics
Trump campaign spokesman Steven Cheung said in a statement to Forbes on Monday that “not only should the dismissal of the Lawless charges in Florida be affirmed, but that it should be immediately accompanied by a dismissal of ALL” cases against Trump, calling them “political attacks” aimed at influencing the election. The ex-president has pleaded not guilty to the charges against him in the document process and called Smith a “criminal.” Cheung said in early August that he intends to sue the Justice Department over the search it conducted at his Mar-a-Lago estate in connection with the investigation into his retention of White House documents. He is seeking $100 million in damages and $15 million to cover his legal fees in the document process. However, he still has to wait before he can formally file suit because federal law requires giving the government enough time to respond before bringing charges against it.
What we don’t know
How the election will affect the criminal case. If the indictment is reinstated, the appeals process will not be completed in time for the criminal case to go to trial by the election. If Trump wins the election, the case is unlikely to go to trial at all, as he could appoint officials in the Justice Department who would drop the appeal and the federal charges.
Important background
Trump was charged in the federal documents case after federal investigators seized more than 11,000 documents from the White House at Mar-a-Lago, including 325 marked classified. The ex-president was charged with withholding national security documents and obstruction of justice, as prosecutors alleged Trump intentionally tried to conceal classified documents and prevent their release to the government. Trump has claimed he had the authority to take the documents with him to Florida, although under federal law, presidential documents become the property of the National Archives when a president leaves office. Attorney General Merrick Garland appointed Smith to oversee the federal government’s proceedings against Trump in November 2022 in order to have a third-party prosecutor lead the case, as Trump was President Joe Biden’s political opponent. Smith also brought charges against Trump for attempting to overturn the 2020 election, and that case is not affected by Cannon’s ruling.
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