Special counsel appeals dismissal of Trump classified documents case

By Tierney Sneed, Marshall Cohen and Devan Cole, CNN

(CNN) — Special counsel Jack Smith said Wednesday that he is appealing a judge’s decision to throw out the indictment against Donald Trump concerning his handling of classified documents.

The special counsel team filed a notice of appeal, the initial procedural mechanism that sets the appeal in motion, on Wednesday, just two days after US District Judge Aileen Cannon dismissed the prosecution and well ahead of the 30-day deadline the prosecutors faced for bringing the appeal.

This means the shock ruling would be reviewed by judges from the 11th US Circuit Court of Appeals based in Atlanta.

The two-page filing from Smith’s team did not indicate whether the prosecutors will seek to speed up the appeals process.

Though the appellate court is conservative-leaning, with half of the full-time judges being appointed personally by Trump, some of its rulings have defied the court’s ideological tilt.

A three-judge panel ruled against Cannon on a critical legal matter earlier in the Trump documents investigation. The three GOP appointees on that panel unanimously overturned her decision to appoint a “special master” to review the materials that the FBI seized during their raid of Mar-a-Lago in summer 2022.

In another notable ruling, the appeals court last year unanimously rejected former Trump White House chief of staff Mark Meadows’ attempt to move his Georgia election subversion criminal case to federal court. That decision was penned by a conservative judge who was appointed by former President George W. Bush.

Cannon in her ruling on Monday had said that Smith’s appointment as special counsel was unconstitutional, warranting the dismissal of the case against Trump.

Another court will weigh the legality of special counsels

Cannon’s dismissal decision brought to an end — at least for now — the criminal proceedings that had been inching along in her Fort Pierce, Florida, courtroom since the charges were brought last summer.

The former president was charged with 32 counts of unlawfully retaining national defense information and another eight counts related to his alleged obstruction of the federal probe into the documents. Smith additionally charged two of Trump’s employees — his personal valet, Walt Nauta, and Mar-a-Lago property manager Carlos De Oliveira — for allegedly assisting in the obstruction scheme.

The case was one of four criminal cases brought against the former president last year. Unlike the other cases, which relied on somewhat novel legal theories targeting Trump’s conduct in the 2016 and 2020 elections, the documents case was seen as more straightforward for how it resembled prosecutions the Justice Department brings routinely against current and former government officials who mishandle sensitive documents.

But prosecutors encountered many hurdles in how Cannon presided over the case, culminating in her bombshell ruling on Monday invalidating Smith’s appointment. Her decision was at odds with the rulings of judges across the country that rejected attacks on the legality of special counsel appointments.

But Cannon’s legal rationale – in which she concluded that Congress had not passed any laws giving Attorney General Merrick Garland the authority to appoint a special counsel like Smith — was foreshadowed by a concurring opinion written by Supreme Court Justice Clarence Thomas in the high court’s recent presidential immunity case. Thomas raised similar concerns about the constitutionality of Smith’s appointment, though no other justices joined him in the concurrence, which he wrote in a dispute arising from the election subversion case Smith election brought in Washington, DC.

The entire Supreme Court may eventually be forced to weigh in, particularly if the 11th Circuit agrees with Cannon, which would stand to create a so-called circuit split with a previous ruling from the federal appeals court in DC upholding the department’s use of a special counsel. Absent a move to speed the appeal in the Trump documents case, it will likely take several months for the appeal to play out in the Atlanta-based appeals court.

This case will be the first instance that the 11th Circuit, which oversees federal appeals from Florida, Alabama and Georgia, confronts the question.

This story has been updated with additional details.

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