(WASHINGTON) — A judge’s surprising decision to dismiss the confidential documents case against Donald Trump brought to an abrupt halt what experts consider the strongest and most direct case against 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 spark a legal fight that could reach the U.S. Supreme Court and result in the reinstatement of the indictment and even the transfer of the case to a different judge.
There is no scenario in which a revived indictment could come to trial before the November election — and presumably it won’t happen if Trump is elected president and orders his Justice Department to remove her from office. Still, Cannon’s order guarantees many more months of legal wrangling in a criminal case that has been complicated over the past year by endless delays.
“The only good thing about this is that it’s 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 is that she has not made decisions. She just sat on the case. And since she made no decision, 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 appointed to the position directly by Attorney General Merrick Garland, rather than being nominated 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 on Wednesday to begin proceedings.
It’s impossible to say whether the opinion will be upheld or reversed on appeal, although other judges in other districts in recent years have reached conclusions opposite to Cannon’s, upholding the constitutionality of special boards that were appointed by Justice Department leadership and funded by a permanent regime for an indefinite period. appropriation.
The Supreme Court, in a 50-year-old opinion involving President Richard Nixon, held that the Justice Department had the legal authority to appoint a special prosecutor.
And although Supreme Court Justice Clarence Thomas raised questions this month about the legality of Smith’s nomination, no other justice has signed on to his concurring opinion in a case that grants broad immunity to former presidents.
Smith’s team will likely point to all of these court decisions when pitching Cannon to the Atlanta-based 11th U.S. Circuit Court of Appeals as an outlier that made not just a bad decision but one that required a quick reversal, Michael said. Gerhardt, 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 “departs from the uniform conclusion of all previous courts that have considered the issue that the U.S. Attorney General is statutorily authorized to appoint a Special Advisor.”
But Jesse Panuccio, a former associate attorney general at the Justice Department in the Trump administration, said the outrage over Cannon’s opinion — which he called a “careful and scholarly” analysis — was misplaced.
“If you took out of the equation the disruption that comes from anyone looking at anything that has to do with Trump and asked legal experts 10 years ago, ‘Hey, are there any issues involving independent counsel, special counsel?’” he said. , the answer would be yes.
Panuccio added: “I think this is a very serious issue and, frankly, it is an issue that, when I was at the Department of Justice, I had reservations about.”
Trump said on Monday that the firing “should only be the first step” and that the other three cases against him, which he called the “Witch Hunt,” should also be dismissed.
Cannon, a Trump appointee, has exasperated the Justice Department since before the indictment was even filed, meaning that if prosecutors request her removal, they could presumably cite a long 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 the Trump team’s request to appoint an independent arbitrator to review the seized records — a decision later overturned by a unanimous federal appeals panel . In April, prosecutors reprimanded Cannon for possible jury instructions she suggested that they said were based on a “fundamentally flawed legal premise.”
It’s unclear whether Smith’s team will seek to transfer Cannon if the appeals court reinstates the case. A spokesman for Smith declined to comment Tuesday on that possibility. It is an unusual request and one that prosecutors in this case avoided making.
But there is precedent for appellate courts to take this action, including in the same judicial district where the Florida case was charged.
“I think it would be quite a statement if the Circuit Court removed her from the case, but I think in this case it would be justified,” said Cheryl Bader, a professor at Fordham University School of Law and a former federal prosecutor. “There appears to be a pattern in which Judge Cannon bends over backwards to create delays and obstacles.”
In 1989, the 11th Circuit reinstated a Florida criminal case of a man accused of trafficking counterfeit Rolex watches and transferred the case to another judge after the trial judge described the case as “silly” and a waste of taxpayer money. .
The court offered three considerations in deciding whether to assign a case to a different judge, including whether such a step is “appropriate to preserve the appearance of justice” and “whether the original judge would have difficulty setting aside his previous opinions and conclusions.” . ”
Gerhardt, the North Carolina professor, said he saw no downside to Smith’s team making such a request.
“Judges sometimes make bad decisions,” he said. “But good judges don’t do that more often than they should, and she has done it more often than any judge should.”
But Panuccio said he didn’t believe Cannon’s order gave Smith’s team enough reason to complain, especially given that Cannon’s position was supported by a member of the Supreme Court.
“I think Jack Smith would be flirting with fire if he made this request based on this opinion simply because he missed an issue,” he said.
This story originally appeared on Time.com read the full story
