(The Center Square) – Special counsel Jack Smith could appeal a judge's controversial decision to toss out the charges that accused former President Donald Trump of mishandling classified documents.
The Department of Justice authorized the special counsel to appeal Judge Aileen Cannon's decision dismissing the case to the 11th Circuit U.S. Court of Appeals.
"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," Smith’s spokesman, Peter Carr, told NBC .
No appeal had been filed as of Tuesday afternoon.
Democrats were outraged by the ruling. Senate Majority Leader Chuck Schumer, D-N.Y., called for Cannon to be reassigned.
"This breathtakingly misguided ruling flies in the face of long-accepted practice and repetitive judicial precedence," Schumer said in a statement. "It is wrong on the law and must be appealed immediately. This is further evidence that Judge Cannon cannot handle this case impartially and must be reassigned."
On Monday, Cannon dismissed the classified documents case, handing a big win to Trump as he official became the GOP nominee for the 2024 presidential contest at the Republican National Convention in Milwaukee, Wisconsin.
Judge Cannon dismissed the case because she said Smith's appointment violated the Appointments Clause of the Constitution, in particular because the Biden administration funded the prosecution without authorization from Congress, which retains the power of the purse.
Cannon said that Smith was operating with the power normally reserved for an attorney general but that unlike an attorney general, Smith was not given express permission by Congress to do so.
"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?" the ruling said.
Special counsels have been used to provide a degree of independence from the Justice Department in some cases. Cannon's ruling doesn't bind the judge overseeing Trump's other federal felony case in Washington D.C. Smith filed the charges in that case as well.
In Washington D.C., Smith's team of federal prosecutors charged Trump with four federal counts related to contesting the 2020 election and the storming of the U.S. Capitol building on Jan. 6, 2021. The charges are conspiracy to obstruct an official proceeding, conspiracy to defraud the United States, obstruction, and conspiracy against the right to vote and to have one's vote counted, according to the indictment. Trump has pleaded not guilty to all charges.
Trump's defense team has not questioned Smith's appointment in the D.C. case, but that could change.
A recent U.S. Supreme Court ruling has further rattled the criminal cases Trump faces. In July, the U.S. Supreme Court ruled presidents and former presidents have absolute immunity for actions related to core constitutional powers and presumptive immunity for official actions. The 6-3 ruling said the president has no immunity for unofficial conduct.
After surviving an assassination attempt on Sunday, Trump called for all the cases and legal challenges he faces to be dropped.
"As we move forward in Uniting our Nation after the horrific events on Saturday, this dismissal of the Lawless Indictment in Florida should be just the first step, followed quickly by the dismissal of ALL the Witch Hunts – The January 6th Hoax in Washington, D.C., the Manhattan D.A.’s Zombie Case, the New York A.G. Scam, Fake Claims about a woman I never met (a decades old photo in a line with her then husband does not count), and the Georgia “Perfect” Phone Call charges. The Democrat Justice Department coordinated ALL of these Political Attacks, which are an Election Interference conspiracy against Joe Biden’s Political Opponent, ME."
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