Jack Smith files last-minute appeal.

Special Counsel Jack Smith filed a last-minute appeal with the 11th Circuit Court yesterday in the ongoing classified documents case against former President Donald Trump. It’s been a little more than two years since the FBI executed a search warrant at Mar-a-Lago, seizing boxes and boxes of documents they say are classified. Judge Aileen Cannon dismissed the federal criminal case last month, just a few days after the attempted assassination of Trump. Smith said he planned to appeal her ruling and this is precisely what he did.

Judge Cannon’s initial ruling stated that Attorney General Merrick Garland had exceeded his authority when he appointed Smith as a special counsel, saying that Congress needed to authorize Garland’s move and that, without it, Smith’s appointment violated the US Constitution.

Smith disagreed, writing in his appeal that Cannon’s decision “is at odds with widespread and long-standing appointment practices in the Department of Justice and across the government” and added that her ruling “conflicts with an otherwise unbroken course of decisions, including by the Supreme Court …”

A 2020 Trump appointee to the bench, Judge Cannon received a lot of heat for her decision, and Smith’s appeal signals that he does not intend to take it as gospel. The timing of this case is critical because it came shortly after the US Supreme Court ruled that presidents may enjoy a certain amount of immunity from prosecution for official actions taken while in office. The practice of presidents removing documents has been widely used by several chief executives, including President Joe Biden, whose case was closed with no criminal charges.

Trump Court Cases: Not Done Yet

Smith’s challenge to the 11th Circuit demonstrates how far he is willing to go to keep his appointed position. He is the same prosecutor who secured a conviction against former Virginia Republican Gov. Bob McDonnell for fraud and conspiracy to obtain property. That verdict, however, was unanimously reversed by the US Supreme Court in 2016.

Twelve judges currently sit on the Atlanta-based 11th Circuit Court, and a three-judge panel will hear Smith’s appeal. In 2022, the 11th Circuit did not look kindly upon Cannon’s previous decision to stop the classified documents case. However, this time around, Cannon has the heft of the SCOTUS decision as backup, leaving legal experts to wonder whether the circuit court will take the same harsh stance it did when weighing the Florida judge’s initial rulings. Whether it finds for or against Cannon, legal experts assert that the issue is unlikely to be solved before Election Day.

Both sides will have until mid-October to file briefs. Then, oral arguments can be made. Should Trump prevail in the election, it’s unlikely federal authorities will pursue the case.

Between the period when he served as commander-in-chief and today, Trump has had to work his way through several cases in federal and state courts. In New York, he was convicted and still awaits sentencing. Nevertheless, if the multiple cases filed against Trump were meant to damage his prospects for re-election, all the legal maneuvering has not appeared to work. At almost every juncture, Trump’s poll numbers have risen.

Many powerful forces are at work both for and against the former president in this court case, as in others, but the one force Trump appears to have on his side is the element of time. And that may become the dominant factor in the case of the United States of America v. Donald J. Trump.