Special counsel appeals judge’s dismissal of Trump classified documents case

The special counsel in the case involving former President Donald Trump’s handling of classified documents has asked a federal appeals court to reinstate the case.

But regardless of the result of the appeal, it’s likely the case will ultimately be decided by the United States Supreme Court, says one expert.

The case was previously dismissed by federal Judge Aileen Cannon in Florida, who found that Special Counsel Jack Smith lacked the legal authority to be appointed in the case. The dismissal came just days after the former president survived an assassination attempt in Butler, Pennsylvania.

The same special counsel is also overseeing the prosecution of Trump in relation to novel charges that the former president tried to “subvert” the 2020 election, but that case is so far unaffected by the dismissal in the documents case.

The prosecution had argued that Trump illegally possessed classified documents at his home in Florida and obstructed attempts by the government to secure them.   

In June 2023 Trump was indicted in Florida on federal charges of “willfully retaining national defense information, and lying to investigators,” after a dramatic raid by the FBI was staged at Trump’s home, the fairness of which even rank-and-file agents questioned. 

Smith, the special counsel appointed by Biden’s Attorney General Merrick Garland to prosecute Trump, filed his appeal in the Eleventh Circuit Court of Appeals just prior to the deadline, said Politico. 

Prior to the appeal, Smith had promised he would challenge the dismissal. 

In his brief to the court, Smith claimed that in dismissing the case in July the judge “deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the Special Counsel’s appointment, and took inadequate account of the longstanding history of Attorney General appointments of special counsels.”  

Smith asked the court to “reverse the dismissal order and remand for further 

proceedings.”  

Legal experts say that even if the appeal is successful, the case will face several obstacles. 

A trial will not be held before the November general election, and if Trump is reelected, the case will likely be dismissed. 

Also, if reinstated, the case will almost certainly revert back to Cannon’s court, reported Newsweek.  

In a few decisions prior to the dismissal, Cannon showed herself to be hostile to the prosecution in the same measure that Smith was hostile to the judge.  

The result has been a combative prosecution that has been “more aggressive than prosecutors typically are with federal judges,” reported Politico. 

The relationship is so bad that Harvard law professor Lawrence Tribe, who acts as a proxy for Democrats in legal cases, said in June that trying the case in front of Cannon, a Florida judge, rather than in D.C., where judges are more politically liberal, was a mistake.  

“Of course charging this case in Florida rather than DC was a mistake,” said Tribe via X. “Many of us argued that at the time, publicly and privately. Fears of a fight over venue were understandable but never justified the risk Smith took that he’d draw a judge like Cannon.”  

Liberal media has also been demanding that the prosecutors take action to remove Judge Cannon from the case, although Politico reports that the appeal contained no request for a new trial judge. 

Cannon was appointed to the bench by Trump in 2020.  

The Eleventh Circuit Court, where the appeal will be heard, includes 21 judges, nine of whom were appointed by Democrat presidents and 12 of whom were appointed by Republican presidents. Trump appointed six of the judges.  

But as Tribe’s comments show, liberal political insiders know that they can still get favorable decisions in reliably progressive courts in Washington, D.C. and Manhattan.  

Trump, for example, was recently convicted of novel fraud charges in a Manhattan court in a prosecution that was led by a local district attorney whose political career is tied to progressive billionaire George Soros.   

As a result, opponents have accused Democrats of abusing the judicial process to stymie and prosecute their ideological foes.  

“It deployed DNC-aligned judges to throw me and other candidates off the ballot and to throw President Trump in jail,” said Robert Kennedy, Jr. last week when he suspended his presidential campaign and endorsed Trump. 

Ultimately, however the appeals court finds, the documents case may be decided by a higher court. 

“This is probably another Supreme Court case, for better or for worse,” former federal prosecutor Josh Naftalis told ABC News when the case was dismissed in July.