Appeals court just gave Jack Smith a deadline to file arguments against Judge Cannon's dismissal of Trump's Mar-a-Lago prosecution

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)

After Jack Smith promptly filed a notice of appeal eight days ago following U.S. District Judge Aileen Cannon’s repudiation of his authority to prosecute Donald Trump in the Mar-a-Lago classified documents case, the U.S. Court of Appeals for the 11th Circuit has set a deadline for the special counsel to submit his brief. That deadline is just over a month from now.

In mid-July, Cannon — a Trump appointee who warmed to the arguments of conservative amici curiae and a concurrence penned by Justice Clarence Thomas in the Supreme Court immunity case Trump v. United States — ruled after “ careful study ” that the Mar-a-Lago indictment for willful retention of national defense information had to be thrown out because, in her view, U.S. Attorney General Merrick Garland unlawfully appointed Jack Smith as special counsel in violation of the Appointments Clause of the Constitution.

“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? After careful study of this seminal issue, the answer is no,” she wrote, roundly rejecting the statutory authorities Smith cited and calling the special counsel a “private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision.”

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It was always clear that the Special Counsel’s Office would appeal, and that notice of appeal dropped two days after the dismissal order, setting up a showdown at the 11th Circuit — the appellate court that put a unanimous and definitive end to Cannon’s special master and her blocking of the feds from reviewing classified documents seized from Mar-a-Lago after the August 2022 search.

The 11th Circuit has since responded by setting a due date near the end of August for Smith to submit the government’s appellate brief, which could recount “nearly 140 years and include some of the most notorious scandals in the Nation’s history.” The rulings of courts that rejected challenges of special counsel Robert Mueller’s authority during the Russia probe could also make an appearance.

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“Pursuant to 11th Cir. R. 31-1(a), the appellant’s brief is due August 27, 2024. The appendix is due 7 days after the appellant’s brief is filed,” the 11th Circuit’s briefing notice said on Thursday. “The appellee’s [Trump’s] brief is due within 30 days after the service of the last appellant’s brief. The appellant’s reply brief, if any, is due within 21 days after the service of the last appellee’s brief. This is the only notice you will receive regarding the due date for briefs and appendices.”

Of note, Smith doesn’t have to wait until Aug. 27 to file the brief, so keep an eye on that space. It also bears watching whether the special counsel moves to expedite the briefing schedule.

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