Jack Smith could win appeal, but still have to deal with Judge Cannon

Special counsel Jack Smith filed his brief to the 11th U.S. Circuit Court of Appeals on Monday, urging the court to reverse U.S. District Judge Aileen Cannon’s dismissal of the classified documents case. The Justice Department has a decent chance of prevailing, but reviving the case alone won’t solve a continuing challenge Smith would still face: Cannon herself.

In her latest avant-garde move in the former president’s favor, the Trump appointee tossed the federal case last month on the grounds that Smith was unlawfully appointed and funded. In his appellate brief, the special counsel highlights how much of an outlier Cannon’s ruling was. Noting the longtime acceptance of special counsels, the government wrote that Cannon’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.”

Recall that, before the former president was charged in this case, the 11th Circuit had already rebuked Cannon’s eccentrically Trump-friendly handling of litigation stemming from the Mar-a-Lago search warrant in 2022. That raised questions when Cannon was randomly assigned to the criminal case last year about whether she could be removed. The short answer is that, as I’ve written before during this saga, it’s more difficult to reassign a judge than you might think, and we shouldn’t assume that that will happen here, absent the judge doing something even more outlandish than she has to date.

Smith’s brief didn’t indicate his intention to seek a new judge. That doesn’t mean that the appeals court couldn’t still remove her while reversing her, but there’s reason to not expect that here.

One thing to keep in mind is how Cannon arrived at her ruling. She cited, among other things, Justice Clarence Thomas’ concurring opinion in the Trump immunity case, in which the Republican appointee went out of his way to question Smith’s appointment. That wasn’t the issue in the immunity case, so we don’t know how many other justices (if any) agree with Thomas. But it would seemingly make it more difficult to kick a judge off a case in part for reaching a decision citing a sitting Supreme Court justice’s reasoning, however flawed that reasoning is. Of course, if the high court ultimately upholds Cannon’s ruling if the case gets to the justices, that would moot any reassignment issue — as would a Trump presidential victory in November, which could lead to him eliminating the case entirely.

That’s all to say that even if Smith succeeds in his current task (something we won’t know the answer to for a while), the case will remain on unsteady ground so long as Cannon presides. And given the great discretion afforded trial court judges, including during their handling of trials themselves, there’d be plenty more opportunity for mischief if the case goes back to her. But at the moment, that might be Smith’s best realistic outcome.  

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