WASHINGTON (AP) — A judge’s stunning decision to dismiss the classified documents case against Donald Trump brought an abrupt halt to what experts have considered the strongest and most straightforward of the prosecutions of the former president. But it’s hardly the final word.
Special counsel Jack Smith’s planned appeal of U.S. District Judge Aileen Cannon’s order is expected to tee up a court fight that might reach the U.S. Supreme Court and could result in the reinstatement of the indictment and even conceivably the reassignment of the case to a different judge.
There’s no scenario in which a revived prosecution could reach trial before the November election — and it presumably won’t take place at all in the event Trump is elected president and orders his Justice Department to dismiss it. Still, Cannon’s order ensures many more months of legal wrangling in a criminal case that became snarled over the last year by interminable delays.
“The only good thing about this is that it is finally a decision,” said Nancy Gertner, a former federal judge in Massachusetts who was nominated to the bench by President Bill Clinton, a Democrat. “The difficulty with Judge Cannon has been that she has made no decisions. She has simply sat on the case. And since she has made no decisions, there was nothing to appeal.”
The judge’s 93-page order held that Smith’s selection as special counsel violated the Constitution because he was named to the position directly by Attorney General Merrick Garland instead of being appointed by the president and confirmed by the Senate. Prosecutors vigorously challenged that argument when it was raised by Trump’s lawyers.
It’s impossible to say whether the opinion will stand or be reversed on appeal, though other judges in other districts in recent years have reached opposite conclusions of Cannon, upholding the constitutionality of special counsels who were appointed by Justice Department leadership and funded by a permanent indefinite appropriation.
The Supreme Court, in a 50-year-old opinion involving President Richard Nixon, held that the Justice Department had the statutory authority to appoint a special prosecutor.
And even though Supreme Court Justice Clarence Thomas raised questions this month about the legality of Smith’s appointment, no other justice signed onto his concurring opinion in a case that conferred broad immunity on former presidents.
The Smith team is likely to point to all of those court holdings in casting Cannon to the Atlanta-based 11th U.S. Circuit Court of Appeals as an outlier who made not just a bad decision but “an irreversibly bad decision,” said Michael Gerhardt, a University of North Carolina law school professor.
A spokesman for Smith’s office, in announcing Monday that the Justice Department had authorized an appeal, said the opinion “deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel.”
But Jesse Panuccio, a former associate attorney general in the Trump administration Justice Department, said anger over Cannon’s opinion — which he called a “careful and scholarly” analysis — was misplaced.
“If you took out of the equation the derangement that comes from anyone analyzing anything that has to do with Trump and you just asked legal scholars 10 years ago, ‘Hey, are there any issues involving independent counsels, special counsels?’” he said, the answer would be yes.
Panuccio added: “I think this is a very serious issue, and it’s an issue frankly that when I was at the Justice Department, I had reservations about.”
Trump on Monday said the dismissal “should be just the first step” and the three other cases against him, which he called “Witch Hunts,” should also be thrown out.
Cannon, a Trump appointee, has exasperated the Justice Department since even before the indictment was filed, meaning if prosecutors do seek her removal, they could presumably cite a laundry list of grievances with her handling of the case.
