Jack Smith’s Three Options After Aileen Cannon Dismisses Case

Special Counsel Jack Smith still has options to try to prosecute Donald Trump on classified documents charges, even after the federal case was dismissed by the judge overseeing proceedings.

On Monday, Judge Aileen Cannon, who was nominated to the bench by Trump, threw out the federal case against the former president over claims that Smith was unlawfully appointed by Attorney General Merrick Garland because it was not first approved by the Senate.

Smith’s office immediately said they will be appealing the decision, noting Cannon’s ruling “deviates from the uniform conclusion of all previous courts” which said attorney generals are authorized to appoint a special counsel without prior permission from the Senate.

Cannon’s office has been contacted for comment via email.

A number of legal experts have laid out how Smith or the Department of Justice (DOJ) could still seek to prosecute Trump over allegations that he illegally retained classified materials after he left office in January 2021, then obstructed the federal attempt to retrieve them.

These include appealing the decision and having it overturned via the courts, or having the case refiled without Smith acting as special counsel.

Smith is likely first to appeal Cannon’s ruling to the U.S. Court of Appeals for the 11th Circuit, which has previously overturned some of the judge’s decisions in the classified documents case.

Smith could also seek to have Cannon removed from the case altogether in the wake of her latest ruling via the 11th court.

Former federal prosecutor Joyce Vance suggested this outcome would be the “icing on the cake” for Smith, as Cannon has long faced criticism for her rulings in the federal case which some say appear to have benefited Trump.

Even if Smith loses an 11th circuit appeal, the prosecutor will likely take the case to the Supreme Court as an option to keep the federal case against Trump alive.

Speaking to ABC News, former federal prosecutor Josh Naftalis suggested that Smith could even bypass the 11th circuit altogether with an expedited appeal, meaning the Supreme Court could rule on the arguments immediately.

“This is probably another Supreme Court case, for better or for worse,” Naftalis said.

There have also been suggestions that Smith could hand over the case to the DOJ, and allow the agency to refile the charges against Trump, either in Florida or Washington D.C., without the special counsel’s involvement.

The argument is that this would bypass Cannon’s ruling regarding the unconstitutional appointment of Smith in November 2022.

Mary McCord, a former federal prosecutor in the office of the United States Attorney for the District of Columbia, said the “smartest thing” would be for the DOJ to try to reindict Trump on classified documents charges.

“Have a U.S. attorney reindict the case, because one of the main points here is that Jack Smith is not presidentially appointed and Senate-confirmed,” McCord told PBS.

“And so this could be rebrought in the Southern District of Florida. Again, it might then end up back in front of Judge Cannon. But at least this argument that the appointment of the special counsel is unconstitutional would be completely off the table, would avoid that issue going through appeals and up to the Supreme Court.”

Writing in her Civil Discourse blog, Vance suggested that the case will not be refiled.

Vance argued refiling the case in Florida would result in accusations of “judge shopping”—where lawyers deliberately try to have a case reassigned to a judge who could deliver a more favorable outcome.

Vance also said that there was no justification for having the case refiled in Washington D.C., where Trump removed the classified materials and took them to his Florida home.

“The charge in this case is reckless mishandling—not theft of the documents—and obstruction of justice. Criminal cases must be brought in the federal district where the criminal conduct occurred, and that’s the Southern District of Florida, where Mar-a-Lago is located,” Vance wrote.

“If the government had proof beyond a reasonable doubt of crimes committed in the District of Columbia, they would likely have brought the case there originally. That they didn’t is telling, and ultimately wise, since the Supreme Court’s immunity decision, incredibly—I still can’t quite wrap my mind around this—suggests that walking off with top-secret materials could be official presidential conduct that Trump gets immunity for.”

In a statement after Cannon’s ruling, Peter Carr, a spokesperson for Smith, said: “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.

“The Justice Department has authorized the special counsel to appeal the court’s order.”