Jack Smith officially appeals dismissal of classified documents case to 11th Circuit

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26 August 2024

'Recusal in a skinny-minute': How Jack Smith motion 'exposes Cannon to oversight'

Special counsel Jack Smith has formally filed an appeal of District Judge Aileen Cannon's decision to dismiss the Mar-a-Lago classified documents case against former President Donald Trump to the Court of Appeals for the Eleventh Circuit.

Cannon, a Trump-appointed judge whose rulings have drawn criticism for consistently benefiting the former president, cited a concurrence by Supreme Court Justice Clarence Thomas to rule that Smith was not properly appointed as special counsel because he was not confirmed by a vote of the Senate.

But in the appeal, Smith points out that this interpretation of the law has never been used in prior cases, and cites decades of law and fact to argue Cannon's interpretation is wrong.

"Precedent and history confirm those authorities, as do the long tradition of special-counsel appointments by Attorneys General and Congress’s endorsement of that practice through appropriations and other legislation," said the filing. "The district court’s contrary view conflicts with an otherwise unbroken course of decisions, including by the Supreme Court, that the Attorney General has such authority, and it is at odds with widespread and longstanding appointment practices in the Department of Justice and across the government. This Court should reverse."

Smith's filing appears to stop just short of asking for the appellate court to throw Cannon off of the case altogether, simply stating that, "The Court should reverse the dismissal order and remand for further proceedings."

Even a win for Smith at this stage would potentially trigger a further appeal to the Supreme Court, and regardless, the litigation of ongoing issues in the case would push out any possible trial date to far past the November election.

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