Special counsel Jack Smith on Wednesday filed a notice appealing the stunning decision earlier this week by Florida court federal Judge Aileen Cannon that dismissed the criminal classified documents case against former President Donald Trump.
Smith's appeal, which was expected, will be heard in the 11th Circuit U.S. Court of Appeals in Atlanta, which reviews cases arising from Florida federal courts.
Cannon on Monday tossed out the case against Trump and two co-defendants, ruling that Smith's appointment to prosecute cases involving the former president violated the appointments clause of the U.S. Constitution.
Trump was charged in the case filed in Florida Southern District Court with retaining hundreds of classified government documents at his Mar-a-Lago club residence after leaving the White House in January 2021, and with trying to hide them from government officials who sought their return.
Peter Carr, a spokesman for Smith, said Wednesday, "We have no comment beyond the filing itself at this time."
Carr on Monday had said that Cannon's 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."
Steven Cheung, a spokesman for Trump's campaign, in a statement said, "As we move forward in uniting our nation after the horrific events on Saturday, this dismissal of the lawless indictment in Florida should be just the first step, followed quickly by the dismissal of ALL of the Witch Hunts. The Democrat-led Justice Department should drop these politically motivated, election interference efforts against President Trump immediately."
The appeal is likely to end up at the U.S. Supreme Court, regardless of how the 11th Circuit appeals court rules.
Trump, who is the Republican presidential nominee, is separately charged by Smith in U.S. District Court in Washington, D.C., with four felonies related to his attempts to undo his 2020 election loss to President Joe Biden.
If Trump is elected this November, he would be able to order his attorney general to terminate the federal prosecutions against him.
Cannon in her ruling Monday said that Smith's appointment was not legal because the Constitution says that "Officers of the United States" must be appointed by the president and confirmed by the U.S. Senate. She also found that the open-ended funding for Smith's prosecutorial office violated the appropriations clause of the Constitution.
