Judge Aileen Cannon may have dismissed Donald Trump’s classified documents case, but that doesn’t mean the fight is over.
Special counsel Jack Smith’s office filed Wednesday to appeal the decision. That will take the case back to court—but this time, away from Cannon’s hands and to the Eleventh Circuit Court of Appeals, which has repeatedly shut down Cannon’s previous ridiculous moves. But the future of the case may still be up in the air.
Cannon made no mention of the case’s merit in her decision to strike it down, but instead pointed at Smith’s assignment to the case as her reason for dismissing it. In a 93-page decision, the Trump-appointed judge argued that the case had leveraged an expired statute—the Independent Counsel Act—as the foundation for Smith’s appointment, and that Smith’s work on the case was thereby invalid and unconstitutional.
That notion had previously been elevated by just one Supreme Court member—Justice Clarence Thomas—who wrote in a concurring opinion in Trump’s immunity ruling on July 1 that “if there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution.”
Legal experts have since roundly criticized her decision, including former Trump attorney Ty Cobb, who argued that there were mountains of legal precedent behind Smith’s appointment. But that detail will heavily complicate hearings before the Eleventh Circuit, so much so that Andrew Weissmann, a former FBI general counsel, has floated the idea of starting the whole case from scratch using regular Justice Department lawyers.
But whether the government decides to follow through with the appeal or start all over again, the odds that the case will be tried before the November election—when Trump could win back the White House and potentially wipe the federal charges from his plate—are slim to none.
Trump faced 42 felony charges in the case related to willful retention of national security information, corruptly concealing documents, and conspiracy to obstruct justice.
For months, Cannon had been accused of slow-walking the trial in a not-so-subtle effort to postpone it indefinitely. After spending considerable time in hearings dedicated to third-party complaints, Cannon began hearing arguments in June over whether Smith’s appointment to the case was constitutional.
