Even if special counsel Jack Smith wins his appeal to revive the classified documents case against Donald Trump, Judge Aileen Cannon would still likely oversee the legal matter, says a former prosecutor.
Cannon last month tossed the case, ruling in a blockbuster decision that Smith's argument was "strained" and that he didn't have the authority or proper funding to handle the prosecution.
Smith filed an appeal to the Trump appointee's decision Monday with the 11th U.S. Circuit Court of Appeals in Atlanta, alleging Cannon's decision "lacks merit," according to the 81-page filing reviewed by the Lawyer Herald.
"The Attorney General validly appointed the Special Counsel, who is also properly funded. In ruling otherwise, the district court deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the Special Counsel's appointment, and took inadequate account of the longstanding history of Attorney General appointments of special counsels," the documents read.
But, as former prosecutor and current MSNBC legal contributor Jordan Rubin pointed out, Smith did not make clear in his filing a desire to have a new judge assigned to the case - and while it's a possibility, it's rather unlikely, if the appeals court does in fact resuscitate it.
"One thing to keep in mind is how Cannon arrived at her ruling," Rubin wrote in his legal blog for the network Monday. "She cited, among other things, Justice Clarence Thomas' concurring opinion in the Trump immunity case, in which the Republican appointee went out of his way to question Smith's appointment. That wasn't the issue in the immunity case, so we don't know how many other justices (if any) agree with Thomas. But it would seemingly make it more difficult to kick a judge off a case in part for reaching a decision citing a sitting Supreme Court justice's reasoning, however flawed that reasoning is."
Rubin mentioned "the case will remain on unsteady ground so long as Cannon presides."
"And given the great discretion afforded trial court judges, including during their handling of trials themselves, there'd be plenty more opportunity for mischief if the case goes back to her," he wrote. "But at the moment, that might be Smith's best realistic outcome."
Trump was previously charged with 40 counts of illegally retaining classified defense information and obstructing government efforts to retrieve the material in connection with the case.
