When U.S. District Judge Aileen Cannon dismissed the classified documents case against Donald Trump, the man who nominated her, she didn’t address whether or not the former president was entitled to store top-secret national security documents in a bathroom at Mar-a-Lago. Rather, she argued that the case was illegitimate because the prosecutor, special counsel Jack Smith, was unlawfully appointed — a ruling that rejected prior Supreme Court precedent as non-binding while at the same time citing conservative Justice Clarence Thomas as if he were the ultimate authority on how and when the attorney general might delegate his powers.
Smith’s response, filed Monday, boils down to this: Dude, come on.
In an 81-page filing with the U.S. Court of Appeals for the Eleventh Circuit, which has already twice reversed Cannon’s decisions in the case, the special counsel’s team points out that, since at 1974, no other court has denied the right of an attorney general to appoint an outside prosecutor to handle a case. That right, the filing notes, is acknowledged in four separate statutes and was recognized by the Supreme Court in the case U.S. v. Nixon, which upheld the appointment of a special prosecutor to investigate a sitting president.
Aside from Cannon, “every court to consider the question” has considered that case to be binding precedent, the filing notes. In other words, while Justice Thomas is entitled to his opinion — in the Trump immunity case, he included a section in his personal opinion separately challenging Smith’s appointment as unlawful — Cannon is not entitled to treat that opinion as more consequential than 50 years of precedent.
Smith’s appeal is highly unlikely to result in the case against Trump resuming anytime soon. As Politico reported, “the special prosecutor has not asked for expedited treatment of the appeal, meaning it will likely stretch for months before it is resolved by a three-judge panel of the Atlanta-based appeals court.” That panel’s decision can in turn be appealed, possibly landing the question back before the Supreme Court.
That’s not the only omission.
“The most interesting thing about Jack Smith's brief to the 11th Circuit is perhaps what's not in it: a request for Judge Aileen Cannon's removal from the case,” noted Lisa Rubin, a legal analyst with MSNBC.
Smith not asking the court to remove Cannon doesn’t mean he actually wants her on the case. As the appeals court well knows, Cannon has made several curious rulings that have strongly suggested a bias in favor of Trump, including a previously-overturned decision to appoint a “special master” to review whether the former president could claim executive privilege over documents, including classified military plans, that he took from the White House.
But asking a court to remove a judge from a case altogether is “very rare,” even if that’s what a prosecutor hopes the court will do, according to Elie Honig, himself a former federal prosecutor.
"That said, sometimes courts of appeals will remove a district court judge on their own. It's extraordinarily rare,” Honig told CNN. But if the same court overturns Cannon again, it’s “a whole new playground,” he said. “That is something that very rarely happens. So if they reverse her again, it’s possible, in my mind, they remove her as well.”
What is exceptionally unlikely to happen is that the 11th Circuit panel upholds Cannon’s dismissal, according to Neal Katyal, who served as acting solicitor general under former President Barack Obama.
“Jack Smith could go into court, the 11th Circuit, blindfolded with his hands tied behind his back, and he would still win this, every day of the every week,” Katyal said on MSNBC. “There are some things in the law that are open to debate and reasonable disagreements and others that are not. This one is not. Every method of interpretation of the law, whether it is text or history or precedent, all is devastating to Judge Cannon’s decision.”
