Three Ways That Jack Smith Could Resurrect the Classified Documents Case

The federal government’s classified documents indictment was once considered a “slam dunk.” But this month, Trump-appointed Judge Aileen Cannon of the Southern District of Florida dismissed the case, ruling that the attorney general improperly appointed Jack Smith, and therefore Smith could not legally prosecute Trump. Smith promptly notified Cannon that he intends to appeal her decision, but it’s not clear what his strategy will be.

There is now a near-zero chance that Donald Trump will be tried over this case in front of a jury before November—but special counsel Jack Smith is forging ahead with an appeal that could go one of three ways.

In order to understand all of Smith’s options, I spoke to Dennis Fan, a former federal prosecutor, and Nancy Gertner, a former federal judge appointed by Bill Clinton. Both of them laid out three avenues the special counsel could take to keep his classified documents indictment alive.

Smith could file his appeal with the 11^th Circuit (he’s only filed the notice of appeal so far), which would be the routine process for an appeal in this case. And both legal experts I spoke to believe this appeals court would likely reverse Cannon’s decision to dismiss the classified documents indictment. They believe she misinterpreted a 1966 federal statute that allows attorneys general to appoint special prosecutors, since the AG is a political appointee and could project an air of bias when prosecuting certain cases. “This is not really a constitutional issue at all; if anything it’s a bit of a statutory issue of what Jack Smith has the authority to do that the attorney general says he does,” said Fan.

Gertner also believes Cannon’s decision flies in the face of precedent, something district court judges don’t have the authority to reverse—only the Supreme Court does. “The notion that she takes it upon herself to reverse decades of precedent is improper on its face,” said Gertner. “Smith could argue that she has gone so far afield with this that she should be disqualified.”

If the 11^th Circuit agrees, it could reassign the classified documents case to a different judge. This was the case with U.S. v. Martin—after the 11^th Circuit found internal court rules had been violated, Gertner said, the court reassigned the case to someone new. Gertner explained those decisions are usually made based on three factors: whether the original judge would have difficulty putting previous views and findings aside, whether reassignment is appropriate to preserve the appearance of justice, and whether it would entail waste and duplication out of proportion to the gains.

“Every court of appeals has rules with respect to when they assign a case, including if a district court judge, for various reasons, got too embroiled,” Gertner explained. She believes this case is ripe for reassignment, since the 11^th Circuit reversed other decisions Cannon made during the classified documents investigation, and she might just have earned her third strike.

Regardless of how the 11^th Circuit rules on Smith’s appeal, the question of whether his position as special counsel is legal could still end up in front of the Supreme Court. In order to save some time, Smith could file a special request for SCOTUS to take the case, skipping ahead of the court of appeals. The special counsel tried this in his election interference indictment over the question of Trump’s presidential immunity, but the justices turned him down, and a few months later ended up accepting the case only after the 11^th Circuit ruled. “If I were him, I would take the shot that you think has the only possible chance of getting a case resolved before the election happens, which is to go up directly,” Fan said. “Otherwise, you just have an appeal that you’re floating around on, that you’re not doing anything with.”

Gertner, however, wasn’t so sure about this route, noting that Smith should want his appeal to go before the 11^th Circuit, the court that’s been the most critical of Cannon. “The Supreme Court, in my view, has acted lawlessly for the past two years, taking cases that no one ever expected them to take, overturning precedent. So who knows?” Gertner said. “There’s no way of knowing what a completely lawless, überconservative court will do.”

In order to get around the question of whether Smith’s appointment as special counsel is legal, the attorney general could fire Smith and prosecute the case himself. But Merrick Garland didn’t do that in the first place because he wanted to avoid the bad optics of a Democratic president’s political appointee prosecuting the leader of the GOP, who also happens to be running for president. “If the priority is to make sure that there is an indictment, that there’s a criminal case that is going forward, that is the quickest way to do that,” Fan argued. “Not to go through any sort of 11^th Circuit appeal that’s ultimately going to end up in the Supreme Court, that’s going to drag out for months and months, way past the election.”

However, this route would require more work, because Garland would not be able to pick up Smith’s case and simply swap himself in; the attorney general would need to file a new, separate indictment. Both Fan and Gertner believe it would likely be filed in Florida too, because if he were to bring it in D.C., it would inevitably end up in a messy venue fight with Trump’s lawyers, further delaying the case from moving to trial.

Gertner also noted that the whole reason Smith filed his classified documents case in Florida is because he’s charging Trump with unlawful retention, and that alleged crime technically took place in Florida, after Trump left the presidency. The indictment could be brought in D.C. if Trump were being charged with unlawful taking, which would focus on Trump’s actions as he was leaving the White House, but that charge “raises more dramatically the kinds of immunity issues that the Supreme Court dealt with in U.S. v. Trump,” Gertner said.

There’s also a chance that if Garland takes up this case himself and refiles it in Florida, he could also be assigned to Judge Cannon—bringing us back to where we started.