What Jack Smith Should Do Now

Don't appeal

On the first day of the Republican National Convention, U.S. District Judge Aileen Cannon threw out the criminal indictment of Donald Trump in Florida. The case brought by special counsel Jack Smith charged Trump with thirty-seven felony counts of unlawful retention of classified materials and obstruction of justice. Judge Cannon found that Smith’s appointment as special counsel violated the appointments clause of the Constitution because there is no statute specifically authorizing such appointments.

Special Counsel Jack Smith (Chip Somodevilla/Getty Images)

Cannon had been sitting on the motion for about five months. In June she heard oral arguments and took the unusual step of allowing the filing of amicus briefs and giving the authors of those briefs time to argue as well. But her decision was really teed up by Justice Clarence Thomas in the presidential immunity decision, Trump v. United States. Although it was not an issue in the case, Thomas wrote a separate concurring opinion making the same arguments against the legality of the special counsel. Cannon cited the Thomas concurrence several times in her decision.

Every other court that has considered similar challenges to the appointment of special counsels has rejected those challenges. Judge Cannon concluded those courts, including the U.S. Court of Appeals for the D.C. Circuit, were all mistaken. Language in the Supreme Court case of U.S. v. Nixon also states that the Attorney General has the power to appoint a special counsel. Cannon decided that language was dicta, or surplus discussion, not part of a binding holding. 

Plenty has been and will be written about the legal flaws in Cannon’s decision. I’d like to discuss a different question: what should Jack Smith do now? The natural response, of course, would be to appeal. The special counsel’s office issued a statement saying that the Justice Department has already authorized Smith to do just that. 

I think there’s a better approach: don’t appeal. Instead, have the United States Attorney for the Southern District of Florida bring a new indictment containing the same charges. Even in a worst case scenario, this would leave Smith no worse off than if he appealed. The benefit is that it would avoid the year or more of delay that would result from the appeals process. And in the best case scenario, there’s even a chance the new indictment could end up assigned to a different judge

A side note: all of this analysis only matters if Trump does not win the election. There is no way this case will be resolved before November, no matter what Smith does. If Trump wins, he is expected to scuttle the prosecution. So my arguments about delay are not because the case might still be tried before the election, but simply because lengthy and unnecessary delays are inherently bad for the prosecution – and the public – in any criminal case.

Before we begin, if you’re interested in a refresher on the Florida indictment and the charges, you can find that here:

Unpacking the Florida Trump Indictment

What Happens If Smith Appeals

The normal and expected response to Cannon’s decision would be for the special counsel to file an appeal in the 11th Circuit Court of Appeals. That court could choose to expedite the matter, but there’s no guarantee that it would. In the normal course, it might be six months to a year, or even longer, before the case is briefed, argued, and decided.

After the 11th Circuit decides, the losing party could seek en banc review by the entire court and then could petition for certiorari with the U.S. Supreme Court. That process could take several more months.

The Supreme Court could decline to hear the appeal. If they did grant certiorari, that would mean many more months of delay until they resolve the case. And I think there is definitely a non-zero chance that this Court could agree with Cannon. It’s true that every other court to consider this question has disagreed with her - but that was also true in Fischer, the case involving the obstruction of justice statute used in January 6 prosecutions. The weight of lower-court opinion is not something that gives this Supreme Court much pause. 

We know Justice Thomas would side with Cannon. No other Justices signed on to Thomas’s opinion in the immunity case, but that could be simply because it was not an issue that was properly raised there. Cannon’s decision is an outlier, but it’s not so crazy that I can’t see a number of members of this Court agreeing with her. In short: if I’m Jack Smith, I don’t think I can assume I would ultimately win in the Supreme Court, despite everyone saying how clearly wrong Cannon’s decision is.

If Smith pursues an appeal, then whether the ultimate resolution comes from the 11th Circuit or from the Supreme Court, there are only two possible outcomes:

• Cannon’s decision is reversed. If that happens, Smith and his prosecution team will be back before Judge Cannon to proceed with the trial, after perhaps 12-24 or more months of delay.

• Cannon’s decision is upheld. If that happens, then if the Justice Department wants to pursue the charges it would need to re-indict using the U.S. Attorney’s Office for the Southern District of Florida.

But this second option is something DOJ could do right now — and I think it should.

What Happens If Smith Doesn’t Appeal

Smith has another, and I think better, option: don’t appeal. Instead, have the Justice Department, through the U.S. Attorney for the Southern District of Florida, bring a new indictment containing exactly the same charges.

The U.S. Attorney for the Southern District of Florida was appointed by the president and confirmed by the Senate. That makes him a constitutional officer of the United States. This removes the supposed constitutional problem identified by Judge Cannon.

As a federal prosecutor the U.S. Attorney is part of the U.S. Department of Justice, not the Florida state government. As part of the same Justice Department as the special counsel, there should be no concerns about the U.S. Attorney’s willingness to bring the case.

All of Smith’s prosecutors working on the case could be immediately detailed to the Southern District of Florida to continue working on the prosecution. Smith himself could even be hired as an Assistant U.S. Attorney in that office, to continue working on the case.

Re-indicting the case would be relatively easy. Prosecutors don’t have to completely reinvent the wheel when a case is re-indicted. Rather than recall all the witnesses, prosecutors are allowed to introduce transcripts of prior grand jury testimony before a new grand jury. They could also streamline the presentation to include only the bare minimum of information necessary to indict. And this is not a terribly complicated case. I’ll bet they could complete the presentation and get a new indictment in a day or two.

There’s no issue with double jeopardy. Jeopardy does not attach until a jury is sworn and is not an issue in a pretrial dismissal. There’s also no issue with the statute of limitations, which will not expire for most of these charges until 2027.

In sum: I think within a matter of weeks there could be a new indictment returned in the Southern District of Florida, containing all the same charges, and all the same prosecutors could continue to work on the case. There are no legal barriers to such an indictment, and this would remove all of the alleged infirmities identified by Judge Cannon.

Would Cannon Get the New Case?

When this case was indicted in 2023, it was randomly assigned to Judge Cannon. There is at least a chance that this new indictment would go “on the wheel” for random assignment, like any new case, and end up assigned to a different judge. 

There are rules in the district court about “related cases” that could result in the new indictment being assigned to Judge Cannon, given her background knowledge about the case. It’s not 100% clear those rules apply to this type of situation. Even if they do, those rules are discretionary. If the Chief Judge is concerned about Cannon being on the case, as a report in the New York Times suggested, then she might have something to say about the assignment of the new indictment.

But let’s assume the new indictment did go back to Judge Cannon. That means Jack Smith and his prosecutors would be back before Judge Cannon to proceed with the trial - exactly the same outcome as if they prevailed on an appeal of her order. But the delay would be only a matter of weeks, rather than a year or two.

If Smith appeals and loses, the Justice Department would be forced to re-indict the case at that time. Then the same related case rules could still result in the case going back to Judge Cannon, but again only after a year or two of delay.

Bottom line: even if we assume the new case indicted under my approach goes back to Judge Cannon, prosecutors are no worse off than they would be after an appeal, no matter the outcome of that appeal. And they avoid the substantial delays that would result from an appeal.

Should the Case Be Re-indicted Somewhere Else?

A related argument you sometimes hear is that in light of the dismissal the case should be re-indicted somewhere other than Florida. The most common suggestion is that the charges should be filed in Washington, D.C., where the classified documents were first removed from the White House.

But there are serious venue problems with bringing the case in D.C.  It’s true the documents were originally removed from D.C., but Trump was president at the time and arguably had a right to have the records. The criminal charges related to the classified documents are not for taking the documents in the first place, but for unlawfully retaining and hiding them after the government asked for them to be returned. All of those actions took place in Florida and when Trump was no longer president. 

Proper venue is a constitutional requirement, not just a matter of a prosecutor’s preference. There could be venue in D.C. for some of the obstruction of justice charges because the investigation being obstructed was based in D.C.  But none of the charges of mishandling and refusing to return the classified documents — the bulk of the indictment — could be properly filed in D.C.

Smith almost certainly would have preferred to indict this case in D.C. if possible, given the experience of the judges there with cases involving classified information and the likely friendlier jury pool. If there was a solid basis for indicting in D.C., he would have done that from the start. I don’t think there’s a basis to do it now.

Some have also suggested trying to file charges in New Jersey, based on a single incident where Trump is on tape bragging about showing a classified document to unauthorized persons at his Bedminster golf club. But I suspect prosecutors lack the evidence to prove such a charge beyond a reasonable doubt. It would certainly be a far weaker and thinner case than the Florida case, where multiple boxes of documents were actually recovered.

Finally, the Justice Department would probably be reluctant to try to file the same charges in a different district following dismissal because that would look like forum-shopping. That’s something DOJ is very critical of when it comes to private litigants trying to file suits before a favorable court. It would not be a good look.

Concern About Cannon’s Decision as Precedent

Another argument for taking an appeal, rather than pursuing my approach, would be that the Justice Department does not want to leave unchallenged a decision holding that special counsel appointments are unconstitutional. I think that concern is legitimate but does not outweigh the downsides of pursuing an appeal.

As the decision of a single district judge, Cannon’s opinion has no weight as precedent. It is not binding on any other court or judge, not even on other trial judges in her own district. The Justice Department could safely isolate and ignore it as an outlier without concern about it affecting any other case or appointment. Indeed, Cannon herself, in her opinion, made a point of saying her decision does not affect any other case.

In addition, if the Justice Department is worried about the impact of Cannon’s decision on future special counsel appointments, it could work with Congress to pursue an easy legislative fix. A new statute that more expressly authorized the appointment of special counsels would overturn Cannon’s opinion and make it completely irrelevant. But if legislation can’t be passed, DOJ could simply ignore Cannon’s opinion in the future, trusting that other judges will not follow it.

Getting Cannon Removed from the Case

The final argument for taking an appeal to the 11th Circuit is that it might give Smith an opportunity to ask that court to reassign the case to a different judge, based on Cannon’s pattern of apparent bias in Trump’s favor. 

I don’t think that cuts against my proposal. There’s no guarantee Smith will make that request, or that the 11th Circuit will grant it if he does. But if Smith does want to take that step, he could make the same request if the new case is indicted and ends up back in front of Judge Cannon. All of the same bases for the request – Cannon’s prior rulings in the case – would still exist. But once again, Smith could avoid a year or two of delay.

Seeking Cannon’s removal from the case is a separate issue from pursuing an appeal of her dismissal order. Smith doesn’t need the appeal in order to seek to have Cannon removed.

Memo to Jack Smith: Don’t Appeal

After running through all the possible outcomes, I don’t see any benefit to Smith of filing an appeal. He should skip the appeal and DOJ should have the U.S. Attorney for the Southern District of Florida promptly re-indict the case. Even if the new case ends up back before Judge Cannon, Smith will be no worse off than he would be after an appeal – regardless of that appeal’s outcome – and he would avoid many months or even years of delay.

It may sound counter-intuitive, but Smith’s best option is not to appeal.