If you thought that Judge Aileen Cannon’s decision to toss former President Donald Trump’s classified documents case would be the end, you haven’t been paying attention.
On Monday, Cannon, a Trump appointee, dismissed the federal case against the former president because prosecutor Jack Smith had no constitutional right to bring the case in the first place.
Smith’s office quickly said they would appeal the decision. Smith points out that Cannon’s ruling “deviates from the uniform conclusion of all previous courts,” which have said that attorney generals can appoint a special counsel without Senate permission.
Several legal experts have explained how Smith or the Department of Justice (DOJ) could still try to prosecute Trump.
Mary McCord, a former federal prosecutor, said the smartest thing for the DOJ would be to try to charge Trump again for the classified documents. She explained that a U.S. attorney should reindict the case because one of the key issues is that Jack Smith is not presidentially appointed and Senate-confirmed. McCord mentioned on PBS that this could be done in the Southern District of Florida.
Even if it ends up back with Judge Cannon, the argument about the special counsel’s appointment being unconstitutional would be avoided.
Not so fast, warns former federal prosecutor Joyce Vance. She said refiling in Florida could lead to accusations of judge shopping, which is when lawyers try to get a case in front of a judge who might favor their side.
Vance also said the case shouldn’t be refiled in Washington, D.C., because Trump took the classified materials to his Florida home. She wrote that the charge is reckless mishandling, not theft, and obstruction of justice.
Criminal cases must be brought to the location of the crime, and that’s the Southern District of Florida, where Mar-a-Lago is located. Vance added that if the government had proof of crimes in Washington, D.C., they would have brought the case there originally.
Smith will probably first appeal Cannon’s ruling to the U.S. Court of Appeals for the 11th Circuit. This court has overturned some of Cannon’s decisions in the classified documents case. If Smith loses in the 11th Circuit, he might take the case to the Supreme Court to keep the federal case against Trump going.
Former federal prosecutor Josh Naftalis told ABC News that Smith could skip the 11th Circuit with an expedited appeal. This would allow the Supreme Court to decide the case immediately. Naftalis said this is likely another Supreme Court case, for better or worse.
Historically, special counsel appointments have faced scrutiny, and eight federal judges had previously rejected Cannon’s claim. The judge presiding over Hunter Biden’s criminal case rejected a similar claim.
Cannon argues that no law of Congress authorizes the special counsel. However, special counsel regulations were drafted under specific congressional laws. These include Section 515, which empowers the attorney general to commission attorneys as “special assistants” or “special attorneys.”
Neal K. Katyal, who drafted the special counsel regulations in 1999, worked with then-Attorney General Janet Reno to brief Congress on the proposed rules. Ken Starr, an independent counsel at the time, supported these regulations.
Before the Ethics in Government Act expired in 1999, independent counsels were appointed to investigate alleged wrongdoing. In 1988, the Supreme Court ruled that these appointments were constitutional.
Since 1999, the Department of Justice has used regulations to appoint special counsels with full power and authority, similar to U.S. attorneys. However, there have been challenges about whether these appointments are constitutional under the Appointments Clause.
Recently, bills have been introduced in Congress to protect special counsels from being removed. Some of these bills propose that special counsels can only be removed for specific reasons or that a court review their removal decisions.
For Democrats, taking the case to the Supreme Court might not be the best move. The Court is on break until October and likely won’t hear the case until after the November election. The case won’t influence the election.
However, Democrats are expected to try everything possible to get the case back on track. With time running out, they need to find a judge and prosecutor who hate Trump and aren’t afraid to sway the case. Fortunately for them, legal corruption is everywhere, even in Florida.
