WASHINGTON — Special counsel Jack Smith on Monday asked a federal appeals court to reopen a classified documents lawsuit against former President Donald Trump after it was dismissed by a judge last month.
U.S. District Judge Eileen Cannon ruled that Smith’s appointment as special counsel was unconstitutional and dismissed the case, one of four indictments against President Trump.
Smith’s team then appealed to the Atlanta-based 11th U.S. Circuit Court of Appeals, with prosecutors saying in an appeal brief that Cannon’s decision was “contrary to long-standing appointment practices at the Department of Justice and broadly across the government.”
The appeal is the latest development in what many legal experts consider a straightforward criminal case that has been bogged down by delays, months of hearings before Judge Cannon, a Trump appointee, and ultimately a dismissal order that at least temporarily halted the proceedings.
It is unclear how long it will take for the appeals court to rule on the case, but even if it overturns Cannon’s dismissal and reinstates the prosecution, there is no chance of a trial happening before the November presidential election, and if Trump is elected, he could appoint an attorney general who would dismiss the case.
The case includes dozens of felony charges that Trump illegally stored classified documents while in office at his Mar-a-Lago resort in Palm Beach, Florida, and obstructed government efforts to return them. Trump has pleaded not guilty.
Smith was appointed special counsel by Attorney General Merrick Garland in November 2022 to investigate Trump’s handling of documents and efforts to overturn the 2020 presidential election ahead of the Jan. 6, 2021, riot at the U.S. Capitol.
Both investigations have resulted in criminal charges, but the election interference prosecutions face an uncertain future following a U.S. Supreme Court ruling last month that granted Trump broad immunity and narrowed the scope of the cases.
Defense lawyers in the security filings argued that Smith’s appointment violated the Appointments Clause of the Constitution, and Judge Cannon held a several-day hearing in June to hear their arguments.
The judge sided with the defense, saying there was no specific law authorizing Garland’s appointment of Smith and that Smith was illegally appointed because he was neither nominated by the president nor confirmed by the Senate.
Smith’s team is expected to point out that the appointment of a special counsel has been repeatedly upheld by judges in multiple cases and that the attorney general’s authority to appoint a special counsel is well established.
