Special Counsel Jack Smith’s office announced plans to appeal Judge Aileen Cannon’s order to dismiss a case against former President Donald Trump and two codefendants for improperly holding classified documents after his presidency.
The Wednesday appeal to the Eleventh Circuit court paves the way for Cannon’s dismissal, which cited Supreme Court Justice Clarence Thomas’s theory that using special counsels in investigations was unconstitutional under the appointments clause.
The dismissal was widely criticized by legal scholars, who argued that Cannon, a Trump appointee, had deliberately stalled, and eventually killed, proceedings against Trump to assist him as he runs his presidential campaign.
Cannon’s legal justification, that special counsels were unconstitutional, comes from Justice Thomas’ solo concurrence in the presidential immunity case, Trump v. United States.
“The Special Counsel’s position effectively usurps [the] important legislative authority [to confirm appointments], transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,” Cannon wrote in her opinion, undermining decades of legal precedent in which special counsels were tolerated.
Smith was appointed by Merrick Garland in November 2022, delegating criminal investigations into Trump to a special counsel’s office in line with the tradition of the use of independent prosecutors in politicized investigations.
The Eleventh Circuit, which overturned Cannon’s previous order to shield the former president after the Mar-a-Lago raid, is anticipated to toss the dismissal, and potentially prepared to remove Cannon from the case.
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