Former president Donald Trump’s legal team has requested a 30-day extension to respond to the government’s appeal of U.S. District Judge Aileen M. Cannon’s dismissal of his classified-documents case, making it less likely that a ruling on whether the indictment should be restored will come before Inauguration Day.
The former president is very likely to be granted the extension. Special counsel Jack Smith did not oppose the request, and the U.S. Court of Appeals for the 11th Circuit in Atlanta — where the government’s appeal was filed — says first-time requests for 30-day extensions should be approved.
Trump’s lawyers said they can’t meet the court’s Sept. 25 deadline because they are juggling other due dates related to Trump’s separate federal election interference case in D.C. They asked to move the 11th Circuit deadline to Oct. 25.
“President Trump and his counsel are presently engaged in motion practice in a separate case brought by the special counsel in the District of Columbia, United States v. Trump, which will require counsel to spend time in a sensitive compartmented information facility (“SCIF”) in Washington, D.C. in the coming weeks to meet that court’s briefing schedule,” the Tuesday filing from Trump’s lawyers reads.
The appeal is in response to Cannon’s ruling in July that Smith was unlawfully appointed as special counsel — a stunning decision that tossed out the entire 40-count indictment against Trump.
Smith appealed that decision to the 11th Circuit, arguing that Attorney General Merrick Garland had clear authority to appoint him and that Cannon’s ruling ignores decades of legal precedent and appointments.
Once Trump replies to the appeal, the court will schedule oral arguments before a three-judge panel on the question of the legality of Smith’s appointment. The panel’s decision would soon follow.
It can take six months or more between the time an appeal is filed in a court and decision is made. So if a decision is to come before Inauguration Day on Jan. 20, the court would need to move faster than normal.
If Trump wins the presidential election, he would probably push his Justice Department to drop the appeal. That would leave the question of the constitutionality of Smith’s appointment unsettled in the 11th Circuit if oral arguments have not taken place.
If Trump loses the election, the appeals process would probably continue. Either side would probably challenge whatever the 11th Circuit decides, and the question ultimately could be settled by the Supreme Court.
Cannon’s ruling that Smith was unlawfully appointed dismissed, at least temporarily, what was considered by many lawyers to be the strongest criminal case against the former president as he again seeks the White House.
The 11th Circuit has already reversed Cannon at a much earlier stage of the classified-documents investigation. After FBI agents retrieved scores of classified documents from Trump’s home, Cannon ruled against the Justice Department and imposed an outside legal expert to review some of the evidence. That move was roundly rejected by the 11th Circuit, as was a decision by Cannon related to what documents could be accessed by federal investigators during the outside review process.
Smith is asking judges from that same court to again intercede to put the case back on track.