U.S. Special Counsel Jack Smith has asked a federal appeals court to reverse the dismissal of a case alleging former President Donald Trump mishandled classified documents at his Florida home after he left the Oval Office.

The appeals process could take months, likely closing the door on any movement in the classified documents case against Trump, the 2024 Republican presidential nominee, before November’s election.

Smith argued late Monday (August 26) that U.S. District Judge Aileen Cannon’s decision to toss the case was based on a “flawed” argument that Smith was illegally appointed to the office of special counsel.

Over an 81-page brief filed in the U.S. Court of Appeals for the Eleventh Circuit, Smith cited statutes and a Watergate-era Supreme Court decision to argue the time-tested legality of U.S. attorneys general to appoint and fund independent, or special, counsels.

“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,” Smith wrote.

Further, he warned, “[t]he district court’s rationale could jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch.”

Cannon, a federal judge for the Southern District of Florida, dismissed the classified documents case against Trump on July 15 — two days after Trump was injured in an attempted assassination in Pennsylvania and just as the Republican National Convention kicked off in Wisconsin.

Cannon is a Trump appointee who was nominated in 2020 and confirmed by the U.S. Senate later that year.

Trump had argued for the case’s dismissal in February.

Days before he was set to officially accept the party’s nomination for president, Trump hailed Cannon’s dismissal as a way to unite the nation following the attempt on his life in Butler, Pennsylvania.

Cannon argued Smith’s appointment violated two clauses of the U.S. Constitution that govern how presidential administrations and Congress appoint and approve “Officers of the United States,” and how taxpayer money can be used to pay their salaries and other expenses.

Smith appealed her decision just days later.

Historic classified documents case

Smith’s historic case against Trump marked the first time a former U.S. president faced federal criminal charges.

A grand jury handed up a 37-count indictment in June 2023 charging the former president, along with his aide Walt Nauta, with felonies related to mishandling classified documents after Trump’s term in office, including storing them at his Florida Mar-a-Lago estate. A superseding indictment that added charges and another co-defendant was handed up a little over a month later.

The classified documents case is just one of several legal entanglements for Trump, who became a convicted felon in New York state court in May.

The former president also continues to face federal criminal charges for allegedly conspiring to overturn the 2020 presidential election results. That case has also been in a holding pattern for several months as Trump appealed all the way to the U.S. Supreme Court, arguing that the charges should be dropped based on presidential criminal immunity.

The Supreme Court ruled in early July that the former presidents enjoy immunity for official “core Constitutional” acts and returned the case to the federal trial court in Washington, D.C.

Smith has until the end of August to assess how the immunity decision affects the election subversion case against Trump. A pre-trial hearing is scheduled for Sept. 5.

Special Counsel Smith files new indictment in Trump’s Jan. 6 case

Adjusting for the U.S. Supreme Court’s sweeping presidential immunity decision last month, U.S. Special Counsel Jack Smith on Tuesday, August 27, filed a fresh federal indictment alleging former President Donald Trump attempted to overturn the 2020 election in his favor.

In a superseding indictment filed in the late afternoon, Smith emphasized the private nature of Trump and his co-conspirators’ alleged conduct and omitted allegations that Trump pressured Department of Justice officials to overturn election results.

The new indictment, which will replace the original August 2023 document, comes after the Supreme Court ruled on July 1 that presidents enjoy criminal immunity for their official “core constitutional” duties while in office, but are not immune for unofficial acts.

The justices returned the case to the federal trial court level following the ruling.

Earlier this month, U.S. District Judge Tanya Chutkan granted Smith’s request for more time to assess how the immunity ruling could impact the election subversion case against Trump. The parties are set to meet in court for a pre-trial hearing on Sept. 5.

In his superseding document, Smith left out a substantial section from the original indictment that detailed Trump’s conversations with former Department of Justice officials about his alleged scheme to overturn the 2020 presidential election results. Trump’s pressure campaign on the department allegedly included urging officials to send letters to state election officials falsely claiming investigations into election results, according to the original indictment.

Smith also focuses attention in the superseding indictment to Trump’s lack of a formal role in the states’ certification of election results.

“The defendant had no official responsibilities related to any state’s certification of the election results,” Smith wrote in the revised indictment.

He later added, “The defendant had no official responsibilities related to the convening of legitimate electors or their signing and mailing of their certificates of vote.”

Core to the charges against Trump are his alleged conspiracies with private attorneys and state election officials to produce and deliver false slates of electors to Vice President Mike Pence and Congress for final certification on Jan. 6, 2021. Those states included Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin.

Both the former and superseding indictments allege Trump repeated false claims about election results on his Twitter account leading up to and on Jan. 6, 2021.

However, the fresh indictment states that while Trump “sometimes used his Twitter account to communicate with the public, as President, about official actions and policies, he also regularly used it for personal purposes — including to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C., on January 6 [and] pressure the Vice President to misuse his ceremonial role in the certification proceeding [.]”

Smith also wrote in the superseding indictment that Trump’s remarks to supporters on Jan. 6, 2021, at the Ellipse — the park between the White House and Washington Monument — amounted to a “campaign speech at a privately-funded, privately-organized political rally held on the Ellipse.”

The felony criminal charges against Trump remain unchanged in the new indictment.

Trump is accused of conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of, and attempt to obstruct, an official proceeding; and conspiracy against rights.

This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NH Business Review and other outlets to republish its reporting.