U.S. prosecutors on Wednesday formally appealed a federal judge’s decision to throw out the criminal case brought by Special Counsel Jack Smith accusing Donald Trump of illegally holding on to classified documents following the end of his presidency.
Smith’s office filed a notice indicating it would ask the Atlanta-based 11th U.S. Circuit Court of Appeals to revive the case and reverse Florida-based U.S. District Judge Aileen Cannon’s ruling on Monday that Smith had been unlawfully appointed by Attorney General Merrick Garland.
Cannon, who was appointed to the bench by Trump in 2020, ruled that Smith’s 2022 appointment violated the U.S. Constitution because Congress did not authorize Garland to name a special counsel with the degree of power and independence wielded by Smith.
The decision was the latest in a series of legal victories for Trump. The U.S. Supreme Court ruled on July 1 that Trump has broad immunity from prosecution for official actions taken as president, a decision that has tied up another criminal case brought by Smith involving Trump’s attempts to overturn his 2020 election loss.
Trump is the Republican candidate challenging Democratic President Joe Biden in the November 5 U.S. election in a rematch from four years ago.
A Trump campaign spokesperson reiterated Trump’s previous call to dismiss all four criminal cases against him in light of Cannon’s decision.
Cannon broke with decades of rulings by other federal courts that have upheld the authority of the attorney general to empower a special counsel to handle politically sensitive investigations.
The practice has been used for decades by administrations of both political parties. Special counsels have also investigated Biden and his son, Hunter Biden.
Cannon’s ruling dismissed the charges against Trump and co-defendants Walt Nauta, a personal aide to Trump, and Carlos De Oliveira, a property manager at the former president’s Mar-a-Lago estate in Florida where the documents were found during an FBI search.
Trump was accused of illegally retaining sensitive national security documents, including records related to the U.S. nuclear program and potential military vulnerabilities, at Mar-a-Lago after leaving office in January 2021. Trump and the two co-defendants also were accused of obstructing an investigation into Trump’s handling of the material.
Trump and his co-defendants had pleaded not guilty.
In addition to the two indictments obtained by Smith, Trump faced criminal charges in a pair of other cases.
He became the first former U.S. president to be convicted of a crime when a jury in New York state court found him guilty in May of felony charges related to hush money paid to porn star Stormy Daniels to avert a sex scandal before the 2016 election. He faces sentencing in September. Trump also faces state charges in Georgia related to his efforts to overturn his 2020 defeat.
The two remaining criminal cases are not expected to be completed before the election.
Smith, a public corruption and international war crimes prosecutor, was appointed to give investigations involving Trump a degree of independence from the Justice Department under the Biden administration. Trump’s lawyers have not challenged Smith’s appointment in Smith’s election-related case.
Six of the 12 active judges on the 11th Circuit were appointed by Trump. The 11th Circuit dealt Trump a defeat earlier over the classified documents. In 2022, before the charges were filed, a three-judge 11th Circuit panel reversed a ruling by Cannon to appoint a third-party “special master” to vet evidence FBI agents seized during a search of Trump’s Mar-a-Lago property in Florida.