Left: Judge Aileen Cannon (U.S. District Court for the Southern District of Florida); Right: special counsel Jack Smith (AP Photo/J. Scott Applewhite, File)
Well before the judge in the Mar-a-Lago case decided Jack Smith was unlawfully appointed as special counsel and tossed out Donald Trump’s indictment on that ground on Monday, prosecutors threatened to appeal to the U.S. Court of Appeals for the 11th Circuit over “clear error” in her decision-making — and that wasn’t the only time they raised the specter of “appellate review.”
U.S. District Judge Aileen Cannon’s dismissal of the case was the last straw, as the spokesman for the Special Counsel’s Office known for not speaking has bashed the ruling and promised that Jack Smith will appeal.
“The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel,” said a statement from Peter Carr. “The Justice Department has authorized the Special Counsel to appeal the court’s order.”
As the Mar-a-Lago case trudged along, with prosecutors complaining about the judge’s view on the naming of witnesses and her Presidential Records Act-focused jury instructions, lawyers highly critical of Cannon’s moves wondered if Smith would seek the “extraordinary remedy” of a writ of mandamus at the conservative-led 11th Circuit to swiftly reverse her or otherwise look to disqualify the Trump-appointed judge from the case over a “pattern of apparent bias.”
Cannon’s own colleagues, including the chief judge in the Southern District of Florida, reportedly tried and failed to convince her over the phone to step aside from the Trump case after the 11th Circuit unanimously smacked down her special master project and her blocking of the feds from reviewing classified documents seized from Mar-a-Lago after the August 2022 search.
“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so,” the 11th Circuit wrote when overturning Cannon. “Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.”
But rather than stepping aside from the case, Cannon serially pushed back deadlines, left a trial date up in the air, pointedly needled prosecutors, and ultimately obliterated Jack Smith’s authority to prosecute while repeatedly citing favorably Justice Clarence Thomas’ concurrence in Trump’s Supreme Court immunity case, a concurrence that no other justice joined.
The ball will next be back in the 11th Circuit’s court.
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