Judge Aileen Cannon’s future on Donald Trump’s classified documents case is hanging on by a thread.
On Tuesday, special counsel Jack Smith will deliver an opening brief to the Eleventh Circuit, initiating an appeal trial to reverse Cannon’s July decision that effectively threw the case out. At the heart of Cannon’s ruling was the conclusion that Smith’s appointment to the special counsel role was unconstitutional, and therefore his work on the case was illegitimate.
“Notably, no other judge to consider the issue has ruled that way, and prosecutions conducted by special counsels have been routine, if infrequent,” wrote former prosecutor Joyce Vance on Sunday in her Substack Civil Disclosure.
The only task before the Eleventh Circuit court will be to determine if Cannon’s ruling was correct or incorrect—after all, the issue at hand is about who can bring the case, not whether the case can be brought at all. It will not touch upon the merits of the special counsel’s case against the former president. Still, Trump’s team will likely try to derail the trial by infusing it with other issues, mainly a recent ruling by the Supreme Court that granted a far-reaching expansion of presidential immunity.
“That issue isn’t properly before the court on this appeal, and the Eleventh Circuit applies very strict rules about only hearing issues that are,” Vance wrote. “We’ll see if that holds up in Trump’s case, as it should.”
“But we’ll likely see the word immunity more than once in Trump’s brief, even though this is only supposed to be the government’s appeal of the Judge’s decision against them, dismissing the case because Judge Cannon believes that the Special Counsel’s appointment was unconstitutional,” she added.
If the government wins the appeal, they will be able to ask the court to assign a new judge to the trial. Though, ultimately, the future of the classified documents trial is contingent on the outcome of the November election. Should Trump lose, the case will move forward regardless of whether or not the government wins the appeal. But should he win, Trump could use his presidential powers to wipe the federal case off the map.
