Special counsel Jack Smith is appealing Judge Aileen Cannon's decision to dismiss his case against Donald Trump for allegedly hoarding classified documents in Florida.
The Context
Trump appointee Cannon dismissed the charges against the former president and ruled that Smith had been illegally appointed. Smith is now appealing that decision to the 11th Circuit Court of Appeals.
What We Know
Smith is arguing that there have been private citizens acting as special counsels for 150 years. If the appeal court agrees, Trump could be facing charges of hoarding classified documents at his Mar-a-Lago estate in Florida.
Smith is relying heavily on legal history in arguing that special counsels have been appointed to criminal cases for the last 150 years, and that the Department of Justice does so to avoid a conflict of interest. In this case, the department wanted to avoid the appearance that it was persecuting Trump.
In their brief to the 11th Circuit on August 26, Smith's office said the attorney general has the "necessary overarching authority" to direct the operations of the Justice Department, including appointing special counsels without approval.
"Precedent and history confirm those authorities, as do the long tradition of special-counsel appointments by attorneys general and Congress' endorsement of that practice through appropriations and other legislation," the brief said.
"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."
Views
Greg Germain, a law professor at Syracuse University in New York, told Newsweek that Cannon's reasons for dismissing the case are "extremely weak," but said the Supreme Court could side with her if the case goes to the nation's highest court.
"There is no way to know for sure what the Supreme Court will say, but given the Supreme Court's extremely broad view of separation of powers in the Trump immunity case, there is a good chance that the Court will agree with Judge Cannon that the broad unsupervised powers given to Jack Smith are unlawful and that the special counsel regulation is overbroad," Germain said.
What's Next?
The appeal will likely take several months. If Trump loses, he is expected to appeal the decision at the U.S Supreme Court and, if unsuccessful, the case will return to the trial judge for more pre-trial hearings.
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