Six weeks after U.S. District Judge Aileen Cannon’s decision to throw out Jack Smith’s Espionage Act/classified documents case against Donald Trump, the Special Counsel has filed a very specific appeal requesting the ruling be overturned and the case be remanded back to court.
Smith had been prosecuting ex-president Donald Trump on 40 criminal felony charges, including 34 under the Espionage Act, over his allegedly unlawful removal, retention, and refusal to return classified documents from the White House. Among them, some of the nation’s top nuclear secrets, are classified at the highest levels.
Judge Cannon, a Trump-appointee, using what amounted to a template from U.S. Supreme Court Justice Clarence Thomas, dismissed the case by claiming Special Counsel Smith was wrongfully appointed. She went even further, saying all special counsels are as well, while claiming his office had been unlawfully funded.
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MSNBC’s Lisa Rubin on-air (video below) reports that Smith did not request Judge Cannon’s removal from the case. But Smith is appealing to the 11th Circuit Court of Appeals, which has previously been extremely critical of some of Cannon’s actions.
National security attorney Brad Moss surmised that “Smith likely concluded, as many suggested, that the Circuit would be unlikely to agree to that [removal] based on the existing record.”
Also notably, Rubin reports Smith is showing the November 2024 election, in which Trump is running for president, has no bearing on his timeline. Indeed, Politico’s Josh Gerstein notes today’s brief from the Special Counsel “came in 1 day ahead of deadline.”
Rubin reported, “the Special Counsel’s office hasn’t come to the [11th] Circuit and requested expedited oral argument, for example, or anything that would really move this along. It appears that they’re acting the same way that they’re acting in the case before Judge Chutkan, which is not to rush things along before the November election, but to do everything they can to shore up what is remaining of these cases, neglecting or even ignoring the fact that there’s an election in the background, just trying to do their jobs with blinders on to the impact on the election.”
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Bloomberg’s Zoe Tillman also reports, “Prosecutors didn’t ask to fast-track this appeal ahead of the Nov. 5 election — Trump is due to respond in 30 days, and then the special counsel‘s office can have 21 days to file a reply. The 11th Circuit hasn’t set a date for arguments yet.”
Rubin also explains Smith accuses Cannon of ignoring Supreme Court precedent, “when she found that the four statutes that [Attorney General] Merrick Garland had invoked in order to appoint Jack Smith, did not comport with the Constitution.”
In his appeal, Smith argues that “Congress has authorized the Attorney General to commission attorneys ‘specially retained under authority of the Department of Justice’ as ‘special assistant[s] to the Attorney General or special attorney[s]’ and has provided that ‘any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal , . . . which United States attorneys are authorized by law to conduct.”
CNN legal analyst Norm Eisen, a Brookings Senior Fellow, remarked: “Judge Cannon’s decision was totally lawless & Smith will win.”
Watch Rubin’s report below or at this link.
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