WASHINGTON — a Astonishing Judge’s Decision to Dismiss Secret Document Case against Donald Trump brought an abrupt end to what experts considered the strongest and most straightforward prosecution of the former president. But it is not the last word.
Special Counsel Jack Smith’s planned appeal of U.S. District Judge Aileen Cannon’s ruling is expected to lead to a lawsuit that could go all the way to the U.S. Supreme Court and result in the indictment being reinstated and possibly even the case being reassigned to a different judge.
There is no scenario in which a renewed prosecution before the November election could lead to a trial — and it likely won’t happen at all if Trump is elected president and his Justice Department orders it dismissed. Still, Cannon’s order sets up many more months of legal wrangling in a criminal case which has run into problems over the past year due to endless delays.
“The only good thing about this is that it’s finally a decision,” said Nancy Gertner, a former federal judge in Massachusetts who was nominated to the court by President Bill Clinton, a Democrat. “The problem with Judge Cannon is that she didn’t make any decisions. She just sat on the case. And because she didn’t make any decisions, there was nothing to appeal.”
The judge ruled in his 93-page order that Smith’s appointment as special counsel violated the Constitution because he was appointed to the position directly by Attorney General Merrick Garland, rather than being nominated by the president and confirmed by the Senate. Prosecutors have vigorously contested that argument when it was brought up by Trump’s lawyers.
However, it is impossible to say whether the ruling will be upheld on appeal or overturned. other judges in other districts have in recent years come to the opposite conclusions of Cannon and have upheld the constitutionality of special prosecutors appointed by Justice Department leadership and funded by a permanent, open-ended appropriation.
The Supreme Court ruled in a 50-year-old decision involving President Richard Nixon that the Justice Department has the legal authority to appoint a special prosecutor.
And while Supreme Court Justice Clarence Thomas this month raised questions about the legality of Smith’s nomination, no other justice has signed his dissent in a case that granted broad immunity to former presidents.
Smith’s team will likely point to all those court decisions to position Cannon before the Atlanta-based 11th U.S. Court of Appeals as an outlier who made not just a bad decision, but “an irreversibly bad decision,” said Michael Gerhardt, a law professor at the University of North Carolina.
A spokesman for Smith’s office said Monday in announcing that the Justice Department had authorized an appeal that the opinion “departs from the uniform conclusion of all prior courts that have considered the issue that the attorney general has the legal authority to appoint a special counsel.”
But Jesse Panuccio, a former deputy attorney general at the Trump administration’s Justice Department, said the anger over Cannon’s opinion — which he called a “careful and scientific” analysis — was misplaced.
“If you took the insanity that occurs when anyone analyzes anything related to Trump out of the equation and you asked legal scholars 10 years ago, ‘Hey, are there any issues with independent counsel, special counsel?’” he said, the answer would be yes.
Panuccio added: “I think this is a very serious problem, and it’s frankly an issue that when I was at the Justice Department I had reservations about.”
Trump said Monday that the dismissal “should only be the first step” and that the three other cases against him, which he called “witch hunts,” should also be dismissed.
Cannon, appointed by Trump, has irritated the Justice Department even before the charges were filed. If prosecutors do seek to fire her, they could likely cite a litany of complaints about her handling of the case.
Weeks after the FBI searched Mar-a-Lago for classified documents in August 2022Cannon has agreed to a request from the Trump team to appoint an independent arbitrator to review the seized documents — a decision later overturned by a unanimous federal appeals panel.
It’s unclear whether Smith’s team will seek to have Cannon reassigned if the appeals court reopens the case. A spokesman for Smith declined to comment on that possibility Tuesday. It’s an unusual request and one that prosecutors in the case had avoided.
However, there are precedents for appellate courts taking this step, including in the same jurisdiction where the Florida case was pending.
“I think it would be quite a statement if the circuit court were to remove her from the case, but I think it would be warranted in this case,” said Cheryl Bader, a Fordham University law professor and former federal prosecutor. “There seems to be a pattern of Judge Cannon bending over backwards to create delays and obstacles.”
In 1989, the 11th Circuit reopened a Florida criminal case involving a man accused of trafficking in counterfeit Rolex watches and reassigned the case to a different judge after the trial judge described the case as “dumb” and a waste of taxpayer money.
The court set out three considerations for deciding whether to reassign a case to a different judge, including whether such a move is “appropriate to preserve the appearance of justice” and “whether the original judge would have difficulty setting aside his previous positions and findings.”
Gerhardt, the North Carolina professor, said he saw no downside to Smith’s team’s request.
“Judges sometimes make bad decisions,” he said. “But bad judges do it more often than they should, and she has done it more often than any judge should.”
However, Panuccio said he did not believe Cannon’s order gave Smith’s team sufficient basis to sue, especially since Cannon’s position was supported by a member of the Supreme Court ruling.
“I think Jack Smith would be flirting with fire if he made that request based on this opinion just because he lost an issue,” he said.