Special Counsel Jack Smith has appealed to a federal court to overturn U.S. District Judge Aileen Cannon’s dismissal of the classified documents indictment against former President Donald Trump. Interestingly, prosecutors are choosing not to request Cannon’s removal from the case.
The appeal, submitted on Monday, contends that Cannon’s dismissal was erroneous, as she claimed that Smith was improperly appointed to oversee Trump’s case, where he faces 40 felony charges for allegedly retaining classified documents after his presidency ended in January 2021.
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According to legal expert Barb McQuade, Smith had to consider this appeal due to the extraordinary nature of Cannon’s decision. She emphasized that the Biden administration has been striving to restore the credibility of the Department of Justice and that pursuing Cannon’s removal might invite accusations of political interference.
Smith’s motion to the 11th U.S. Circuit Court of Appeals highlighted that Cannon’s ruling undermines established appointment norms within the Department of Justice and could threaten the integrity of future appointments across the federal government.
Notably, the appeal asserts that the Attorney General correctly appointed the Special Counsel, who is duly funded, and cites several statutes that support the Attorney General’s authority to appoint special counsels.
While it’s possible that the appeals panel could choose to remove Cannon, McQuade acknowledged that opinions vary on whether Smith made the best choice in not seeking a new judge. Former federal prosecutor Michael McAuliffe remarked that the decision to reassign judges is a separate issue from the core argument of the appeal.
Legal analysts, like Neama Rahmani, stressed that Smith’s immediate priority should be overturning Cannon’s dismissal, suggesting that discussions about removing her can come later. Rahmani indicated that he found Cannon’s reasoning for dismissal questionable, with some experts labeling her order as “lawless.”
Rahmani noted that Cannon’s ruling not only affects Trump but also raises questions about the appointment of special counsels in other cases, including those involving Hunter Biden. He expressed skepticism about Cannon’s dismissal persevering, suggesting that the Eleventh Circuit could well overturn her decision, which would mark a significant reversal in the ongoing case against Trump.