WASHINGTON — Special counsel Jack Smith intends to appeal a judge’s dismissal of the classified documents case against former President Donald Trump.
A spokesman for Smith revealed the move in a statement Monday hours after U.S. District Judge Aileen Cannon threw out the case. The judge sided with Trump’s lawyers, who said Smith’s appointment as special counsel violated the Constitution.
A successful appeal by prosecutors could result in the indictment being reinstated, though even if that there were to happen, it would be virtually impossible for a trial to take place before the November presidential election.
Cannon’s decision brings at least for now a stunning and abrupt conclusion to a criminal case that at the time it was filed was widely regarded as the most perilous of all the legal threats the Republican former president confronted.
Though the case had long been stalled, and the prospect of a trial before the November election already nonexistent, the judge’s order is a significant legal and political victory for Trump as he recovers from a weekend assassination attempt and prepares to accept the Republican nomination in Milwaukee this week.
It’s the latest stroke of good fortune in the four criminal cases Trump has faced. He was convicted in May in his New York hush money trial, but the sentencing has been postponed after a Supreme Court opinion that conferred broad immunity on former presidents. That opinion will cause major delays in a separate case charging Trump with plotting to overturn his 2020 election loss to Democrat Joe Biden. Another election subversion case filed in Atlanta has been delayed by revelations of a romantic relationship between the district attorney and a special prosecutor she hired for the case.
In a statement on his social media platform, Trump said that the dismissal “should be just the first step” and that the three other cases, which he called “Witch Hunts,” should also be thrown out.
The classified documents case had been seen as the most legally clear-cut of the four given the breadth of evidence that prosecutors say they had accumulated, including the testimony of close aides and former lawyers, and because the conduct at issue occurred after Trump left the White House in 2021 and lost the powers of the presidency.
The indictment included dozens of felony counts accusing him of illegally hoarding classified records from his presidency at his Mar-a-Lago estate in Palm Beach, Florida, and obstructing FBI efforts to get them back. He had pleaded not guilty and denied wrongdoing.
Defense lawyers filed multiple challenges to the case, including legally technical ones that asserted that special counsel Jack Smith’s appointment by Attorney General Merrick Garland violated the Constitution’s Appointments Clause because it did not go through Congress and that Smith’s office was improperly funded by the Justice Department. She said Garland had exceeded his bounds by appointing a prosecutor without Senate approval and confirmation and had undermined the authority of Congress.
“The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,” Cannon wrote in a 93-page order that granted the defense team’s request to dismiss the case but did not dissect the substance of the allegations against Trump.
“If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so,” she added.
That mechanism is through congressional approval, she said.
The order is the latest example of the Trump-appointed judge handling the case in ways that have benefited the ex-president.
She generated intense scrutiny during the FBI’s investigation when she appointed an independent arbiter to inspect the classified documents recovered during the August 2022 search of Mar-a-Lago, a decision that was overturned months later by a unanimous federal appeals panel.
Since the charges were filed, she has been slow to issue rulings — favoring Trump’s strategy of securing delays in all his criminal cases — and has entertained defense motions and arguments that experts said other judges would have dispensed with without hearings. In May, she indefinitely canceled the trial date amid a series of unresolved legal issues.
Smith’s team had vigorously contested the Appointments Clause argument during hearings before Cannon last month, saying Justice Department leadership has full authority to name and fund a special counsel. Attorneys general appointed by both Democratic and Republican presidents have named special counsels without the permission of Congress, going back years.
Prosecutors had also noted that Trump’s position had been rejected in other courts involving other prosecutions brought by other Justice Department special counsels.
For instance, Trump-appointed judges in the federal tax and firearms cases against President Joe Biden’s son, Hunter, dismissed similar arguments several months ago. The younger Biden was convicted of three felonies in the gun case in June and is scheduled for trial in September in the tax case.
The appointment of another special counsel Robert Mueller, selected by Trump’s Justice Department to investigate potential ties between Russia and Trump’s 2016 campaign, was also upheld as lawful by a District of Columbia judge.
But Cannon remained unpersuaded, and she called the prosecution’s claims “strained.” The Trump team’s position got a boost earlier this month in a Supreme Court ruling that said former presidents enjoy expansive immunity from prosecution, with Justice Clarence Thomas writing a separate concurrence questioning whether Smith had been legally appointed.
No other justice signed on to the concurrence, which Thomas said he wrote to “highlight another way in which this prosecution may violate our constitutional structure.” Thomas wrote that lower courts should weigh whether the office had been “established by law,” and Cannon cited that concurrence several times in her order.
“Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution?” she said. “After careful study of this seminal issue, the answer is no.”
A spokesman for the Smith team had no immediate comment.
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Associated Press writers Alanna Durkin Richer and Lindsay Whitehurst in Washington contributed to this report.
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