‘Appellant’s motion to dismiss the appeal as to Donald J. Trump only is granted,’ an order from the court reads.
The U.S. Court of Appeals for the 11th Circuit has granted special counsel Jack Smith’s request to dismiss part of an appeal in his classified documents case against President-elect Donald Trump.
Smith had sought an appeal of Florida Judge Aileen Cannon’s decision in July to dismiss his prosecution.
Judge Cannon argued that his appointment as special counsel violated multiple provisions of the Constitution.
Smith is still pursuing an appeal as it relates to two other defendants in that case, which the appeals court allowed in an order on Nov. 26.
“Appellant’s motion to dismiss the appeal as to Donald J. Trump only is granted,” an order from the court reads.
A letter from the court’s clerk similarly stated: “The dismissal order is for Appellee, Donald J. Trump, only. The appeal will proceed with the remaining Appellees.”
The court’s order came just a day after Smith filed two motions to dismiss his prosecutions against Trump.
Shortly after the November elections, Smith filed a motion to hold the appeal in abeyance, which was granted by the court the following day.
In Washington, Judge Tanya Chutkan granted his motion to dismiss the election interference case without prejudice.
His motion to the 11th circuit on Nov. 25 referred to the motion in Washington, which cited longstanding Department of Justice policy against the prosecution of sitting presidents.
It’s unclear how the appeal against the other defendants will proceed under the Trump administration given that the president-elect has argued that Smith’s appointment was illegal.
On Nov. 26, Smith filed a brief arguing that his appointment was legal.
In it, his office argued that multiple statutes authorized his appointment.
He said, contrary to Cannon, that his funding didn’t violate the appropriations clause of the Constitution either.
That was the latest in a long list of filings to the appeals court, including amicus briefs from former attorneys general and multiple states.
The issue seemed poised for future Supreme Court review after Justice Clarence Thomas penned a concurring opinion casting doubt on the legitimacy of Smith’s appointment.
That opinion came alongside the Supreme Court’s majority opinion in Trump v. United States, which broadly held that presidents enjoyed varying levels of immunity from criminal prosecution.
The court’s decision came in response to Trump’s appeal in his Washington case, which was similarly dismissed on Nov. 25 after another motion to dismiss from Smith.
In that case, Trump had expressed an interest in challenging Smith’s appointment in a motion to dismiss similar to the one that Cannon granted in Florida.
Cannon’s dismissal, combined with the 11th Circuit potentially affirming her decision, could have helped set up the type of circuit split that Supreme Courts typically consider when taking on new cases.
“The attorney general has delegated the authority to represent the United States in these particular matters to a special prosecutor with unique authority and tenure,” reads the 1974 majority opinion, authored by Chief Justice Warren Burger.
“The regulation gives the special prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties.”
Cannon said in July that the court’s wording about Congress authorizing special counsel appointments was dictum or nonbinding on future court decisions.
More specifically, she said that the Court was engaging in dictum when it said that Congress had “vested in [the attorney general] the power to appoint subordinate officers to assist him in the discharge of his duties.”
Smith disagreed and argued that the court’s reasoning was central to reaching the case’s conclusion about executive privilege.
It allowed the court to view the case as a justiciable case, he said.
“That conclusion was a binding holding, or, at least, authoritative dictum,” he said.
“Either way, Nixon conclusively defeats the defendants’ challenge to the special counsel’s appointment, as every other court to have considered the issue has found.”