(Bloomberg) — Special Counsel Jack Smith will appeal a Florida judge’s decision dismissing the federal case charging Donald Trump with mishandling classified information and obstruction, according to a spokesman for Smith’s office.
US District Judge Aileen Cannon on Monday tossed out the case after finding Attorney General Merrick Garland’s appointment of Smith as special counsel to investigate Trump was unconstitutional. The government now will take the fight to the 11th Circuit US 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,” Peter Carr, a spokesman for Smith’s office, said in a statement. “The Justice Department has authorized the Special Counsel to appeal the court’s order.”
It wasn’t immediately clear if Smith’s office would ask the Atlanta-based 11th Circuit to put the case on a faster track. Under normal circumstances, appeals can take months to resolve. But any future proceedings in the Florida case are on a collision course with the Nov. 5 presidential election. If Trump is elected, he is expected to direct the Justice Department to drop the Florida case as well as a separate federal prosecution against him in Washington.
Cannon, who was appointed by Trump to the federal bench in south Florida, found that Congress hadn’t given Garland authority to appoint a private citizen as special counsel with prosecutorial powers similar to a presidentially-appointed US attorney.
The judge also found that because Smith wasn’t lawfully appointed, his use of millions of dollars in federal funds to cover the cost of the Trump investigations was also unconstitutional.
Cannon wrote that “Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme — the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law.”
The last time the Atlanta-based appeals court reviewed a decision by Cannon in connection with the classified documents probe, she was reversed. In December 2022 — months before Trump was indicted — a three-judge panel found that Cannon was wrong to interfere with the ongoing criminal investigation by appointing a special master to review material seized from Trump’s Mar-a-Lago estate during a judicially-authorized FBI search.
Garland appointed Smith in November 2022 to examine whether Trump improperly held onto dozens of classified documents after he left office in January 2021.
Garland has appointed three special counsels — Smith, to investigate Trump; David Weiss, to probe Hunter Biden’s taxes and gun purchase; and Robert Hur, to examine President Joe Biden’s handling of classified documents.