On Monday, August 26, 2024, Newsweek reported that Special Counsel Jack Smith filed an appeal asking a federal appeals court to reverse U.S. District Judge Aileen Cannon’s dismissal of the classified documents indictment against former President Donald Trump. Judge Cannon had tossed out the case against Trump in July on the grounds that Smith’s appointment as special counsel was invalid.
However, Smith did not request in his appeal that the case be transferred to a new judge, a decision that legal experts say was likely meant to maintain public trust in the Department of Justice.
According to Barbara McQuade, a former U.S. attorney, asking to remove a judge over allegations of bias is a serious claim, and Cannon’s rulings against prosecutors does not necessarily prove her partiality. While Cannon’s decisions in this case have been highly unorthodox, directly accusing her of bias could have opened Smith and the DOJ up to criticism that they are playing politics.
Smith’s filing argues that Cannon was wrong to dismiss the charges and that his appointment by Attorney General Merrick Garland was lawful and followed long-standing Justice Department practice. It cites four statutes supporting the AG’s authority to appoint special counsels. If upheld, Cannon’s ruling could undermine similar appointments across the executive branch.
Other experts agree with Smith’s strategic choice to focus solely on overturning the dismissal at this stage. Michael McAuliffe, a former federal prosecutor, said the most urgent goal is reinstating the case, while any issues of judicial assignment could be addressed later by the appeals court if needed. Former federal prosecutor Neama Rahmani noted that directly moving to disqualify Cannon now would be an additional fight, not necessarily important to immediate victory.
Legal analysts have been highly critical of Cannon’s July order. Legal analyst Norman Eisen called it “totally lawless” and said the appeals court should remove her. Rahmani was also shocked by Cannon finding the special counsel’s appointment unconstitutional, saying she could have ruled based on presidential immunity instead of dismantling precedent. He would not be surprised if Cannon’s third reversal relating to Trump occurs.
The appeals court could choose to take the extraordinary step of removing Cannon from the case as part of its upcoming decision on whether to reverse the dismissal. However, most experts agree with Smith that the priority at this initial stage is simply gaining reinstatement of the charges against the former president. Further issues of judicial bias or reassignment remain to be addressed down the line if still deemed necessary.
Source: Newsweek
