Appeals court timeline suggests months more of delay for Jack Smith’s documents case against Trump

Special counsel Jack Smith’s bid to revive the classified documents case against Donald Trump appears unlikely to be resolved or even argued in court before Election Day.

Smith is appealing U.S. District Judge Aileen Cannon’s decision last week to dismiss the case, in which the former president is charged with hoarding national security secrets at Mar-a-Lago after he left office. The federal court that will hear his appeal — the Atlanta-based 11th Circuit Court of Appeals — laid out a schedule Thursday that requires Smith and Trump to file legal briefs through mid-October.

After all the briefs are in, the court will likely hear oral arguments, with a decision weeks or potentially months after that.

Barring an effort by Smith to demand an expedited schedule, the 11th Circuit’s timeline suggests the effort by prosecutors to resuscitate the case is likely to stretch past the 2024 election. A Trump victory in the election is seen as a likely death knell for the case, as Trump’s Justice Department leaders would be expected to unravel the prosecution.

A spokesperson for Smith had no comment Thursday on the schedule or whether Smith plans any steps to accelerate it.

Cannon threw out the case on July 15, agreeing with Trump’s contention that the special counsel was improperly appointed by Attorney General Merrick Garland in violation of the Constitution’s “appointments clause.” The ruling, particularly Cannon’s decision to throw out the case altogether rather than permit it to be handed off to other prosecutors within DOJ, stunned many legal observers who have contended Smith is likely to prevail on appeal.

Under the standard timeline outlined by the appeals court, Smith would file his opening brief by Aug. 27 — though nothing would prevent him from filing it earlier. Trump’s brief would follow 30 days afterward, and Smith would have an opportunity to reply three weeks after that. If all briefs are filed on their due date, briefing would be complete by mid-October, with oral arguments to a three-judge panel of the appeals court likely to follow several weeks or months later.

No matter who prevails, additional appeals are possible to the full bench of the 11th Circuit or the Supreme Court, all but ensuring Trump’s case can’t return to the trial court until well after the election.