Special counsel Jack Smith is extremely likely to prevail in his appeal to throw out a controversial ruling dismissing former President Donald Trump's Mar-a-Lago classified documents case, a former federal prosecutor said Monday.
Smith appealed to the 11th Circuit to toss District Judge Aileen Cannon's ruling. The bottom line, Elie Honig told CNN's Anderson Cooper, is that Trump argued to throw out the case on the grounds that Congress must pass a specific law creating the special counsel position in order for there to be a special counsel.
"But what Jack Smith argues, I think quite persuasively in his brief is, there are four different laws where Congress says, well, the attorney general has very broad powers to delegate his authority to enlist other prosecutors and FBI agents to do the work that he needs done, and I think that's a powerful argument," he said.
Furthermore, he added, Trump's argument has been used in several other special counsel cases, "including in the Mueller case, in the Hunter Biden case, and it has not succeeded. Judge Cannon's the only one" to find it has any merit.
"If this is reversed, could Smith try to get Cannon removed?" asked Cooper.
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"So he could have asked in the brief that he filed today to have Judge Cannon removed, but he did not," said Honig.
He noted it's "very rare" for federal prosecutors to ask for something that drastic.
"That said, sometimes courts of appeals will remove a district court judge on their own. It's extraordinarily rare. But if they reversed Judge Cannon here, that'll be twice ... that is a whole new playground there, that is something that very rarely happens. So if they reverse her again, it's possible, in my mind, they remove her as well."
"That would be, I'd imagine, not great for her career," Cooper pressed him.
"Oh, my gosh. It would be humiliating for her," agreed Honig. "When it happens, it is a mark that stays with that judge for a long time. The federal appeals courts are extremely reluctant to remove a district judge. They only do it where they feel like that judge cannot fairly continue on the case."
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