Special Counsel files appeal over tossed Trump classified documents decision, case moves to Atlanta

ATLANTA — Another one of the criminal cases against former President Donald Trump is coming to Atlanta.

Earlier this weeks, U.S. District Judge Aileen Cannon tossed out the classified documents case against Trump, siding with defense lawyers who said the special counsel who filed the charges was illegally appointed by the Justice Department.

Special Counsel Jack Smith has now formally filed the appeal against Cannon’s decision, and the case will now go in front of the 11 Circuit Court of Appeals in downtown Atlanta.

The appeal 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.

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, and filed a formal notice of appeal Wednesday to initiate the process.

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.

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 conferring broad immunity on former presidents.

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.

RELATED STORIES:

• Judge Aileen Cannon dismisses Trump classified documents case
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• Judge in Trump classified docs case grants his request for hearing on key evidence in indictment
• Trump lawyers in classified files case challenge prosecutor’s appointment at start of 3-day hearing

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.

Weeks after the FBI searched Mar-a-Lago for classified documents in August 2022, Cannon granted a Trump team request to appoint an independent arbiter to review the seized records — a decision later overturned by a unanimous federal appeals panel. In April, prosecutors rebuked Cannon over potential jury instructions she floated that they said rested on a “fundamentally flawed legal premise.”

It is unclear if Smith’s team will seek to have Cannon reassigned in the event that the appeals court reinstates the case. A Smith spokesperson declined to comment Tuesday on that possibility. It’s an unusual request and one prosecutors in this case had avoided making.

But there is precedent for appeals courts taking that step, including in the same judicial district where the Florida case was charged.

“I think it would be quite a statement if the Circuit Court removes her from the case, but I think in this instance it would be warranted,” said Cheryl Bader, a Fordham University law school professor and former federal prosecutor. “There does seem to be a pattern of Judge Cannon bending over backward to create delay and obstacles.”

The Associated Press contributed to this story.

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