Special Counsel Jack Smith formally filed notice on Wednesday that he will appeal a Florida judge’s decision to dismiss the 40-count mishandling of classified documents and obstruction case against former president Donald Trump.
The appeal, laying out Smith’s argument for why the case should not be dismissed, is expected to land in coming weeks in the 11th Circuit Court of Appeals — an appeals court in Atlanta whose jurisdiction covers Florida.
On Monday, U.S. District Judge Aileen Cannon tossed the indictment against Trump and two co-defendants after concluding that Smith’s appointment as special counsel violated the constitution.
Her ruling deviates from other courts’ decisions that have upheld the constitutionality of such appointments.
Trump’s legal team asked months ago to dismiss the case, arguing that federal regulations suggest Smith holds so much authority as he leads the prosecution against Trump that Congress and President Biden should have been involved in his appointment.
Smith was appointed by Attorney General Merrick Garland, who said a special counsel was needed to assure the public that the politically fraught prosecutions of Trump — the Republican nominee for president — would be shielded from any interference by the Biden administration.
While special counsels have more independence than most federal prosecutors, the Justice Department has said they must adhere to agency protocols, and the attorney general can review major steps in their investigations.
Whatever the 11th Circuit decides in the Trump case could then be appealed to the Supreme Court.
In 2022, a three-judge panel on the appeals court in Atlanta rebuked Cannon in a different matter, unanimously overturning her decision to appoint a an outside expert to decide whether any of the material collected in the investigation in the Trump classified document case should be shielded from criminal investigators.
Trump was accused of taking dozens of highly classified documents with him after leaving the White House, and obstructing government efforts to retrieve them. In total, more than 300 classified documents were returned or recovered from Mar-a-Lago, his Florida home and private club.
In response to the filing, Trump campaign spokesman Steven Cheung called for national unity after the assassination attempt on the former president Saturday in Pennsylvania, and urged the Justice Department to drop the cases against him.