A federal appeals court has hampered the latest attempt by special counsel Jack Smith to save his classified documents case against former President Donald Trump that was dismissed earlier this month by U.S. Florida District Judge Aileen Cannon.
Politico reported that Smith’s bid to revive the case is on life support after the 11th Circuit Appeals Court announced it would give both sides until mid-October to submit briefs for a case that is now certain to remain unresolved before the November election. The announcement comes less than a month after Judge Cannon ruled that federal law is ambiguous about whether Smith, a Justice Department representative, was properly appointed by U.S. Attorney General Merrick Garland. After all filings are in, the appeals court would hear oral arguments, with a decision expected weeks or months later.
The decision is a major blow to Smith, a favorite foil of Trump who has feuded with Cannon, a Trump appointee, over perceived biases in the case. In April, the prosecutor demanded that Judge Cannon rule expeditiously on jury instructions related to the Presidential Records Act so that he may appeal the ruling if she decided that defense attorneys would be allowed to argue that all documents in Trump’s possession were declassified during his time as president. Cannon responded by unsealing a series of documents showing that Smith and DOJ prosecutors threatened the attorney of a Trump defendant and coordinated with the U.S. National Archives to keep Trump’s attorneys out of the loop as they prepared for a raid on Mar-a-Lago. President Trump has previously highlighted a document showing that FBI officials who conducted the raid were given permission to use deadly force.
Smith is still prosecuting President Trump in the Washington, D.C. district where he faces four counts of election interference related to actions and statements surrounding the January 6th, 2021 riots at the U.S. Capitol. In that case, an Obama-appointed judge has been more favorable to the federal prosecutor, imposing a gag order on Trump and setting an early trial date despite millions of pages of evidence left to parse. Still, most legal observers believe Judge Tanya Chutkan will be unable to make a decision before the election; if Trump wins, he is expected to move immediately to have the DOJ drop both cases against him.
In May, President Trump was convicted in his Manhattan hush money trial and has since moved to overturn the ruling, citing a recent Supreme Court decision granting sitting presidents sweeping immunity from official acts taken in office. Attorneys for Trump argue that any direction he gave Michael Cohen to pay Stormy Daniels was protected speech. He faces a second state trial in Georgia where the case brought by Fulton County District Attorney Fani Willis has all but fallen apart.
Despite his felony conviction in New York, Trump has seen Republicans flock to support him and enjoyed record fundraising levels immediately following the outcome. He is still waiting for the Manhattan Judge Juan Merchan to impose a sentence at a later date while the appeals process remains ongoing.
