AILSA CHANG, HOST:
Special counsel Jack Smith says he will appeal a ruling by a federal judge to dismiss charges against former President Trump for withholding and concealing classified and top secret documents. The dismissal by U.S. District Judge Aileen Cannon stunned legal observers because it ran counter to 50 years of rulings made by other federal courts, including the Supreme Court. The case is now headed to the 11th Circuit Court of Appeals, which will have a number of issues to consider. And here to talk about that is NPR's Greg Allen. Hi, Greg.
GREG ALLEN, BYLINE: Hi.
CHANG: Hi. OK, so now that Judge Cannon has dismissed these charges, did prosecutors have any option but to appeal?
ALLEN: Well, as you know, Judge Cannon's decision has been roundly criticized by a host of legal experts. The main reason is that before she made a ruling, federal judges in eight previous cases had looked at these issues, and they'd all found that the special counsels had been lawfully appointed. Interestingly, a number of legal experts are saying the best move by the Justice Department now might be just to refile the charges against Trump using not a special counsel but regular Justice Department lawyers. Former federal prosecutor David Weinstein says even though she threw it out, Judge Cannon made no ruling on the merits of the case against Trump.
DAVID WEINSTEIN: Nothing about whether or not this was obstruction. Nothing about whether or not it was an official act. And so that's something that would then be litigated by whatever district court judge found this case in front of them.
ALLEN: There is the question, of course, of what jurisdiction you would refile this case in. The obvious place would be to refile it in Florida. But there you have the risk that prosecutors would once again be before Judge Cannon. Washington, D.C., of course, is also a possibility.
CHANG: OK. Well, Jack Smith says he will appeal, but is it possible that the Justice Department would just let Judge Cannon's ruling stand even though it runs against decades of established legal precedent?
ALLEN: Well, many former prosecutors and other legal experts think Cannon's ruling is egregiously wrong, but an appeal wouldn't speed up the process if you decide to refile the charges. Andrew Weissmann, a former FBI general counsel, says he sees a lot of problems with Cannon's ruling that are grounds for reversal, he thinks. But on the other hand, he thinks the best strategy would be just to start over.
ANDREW WEISSMANN: You know what? There are lots of district court decisions that you might disagree with. She's an outlier. She's just a district court. Eight other judges have said no, including the D.C. Circuit. Just 'cause it's wrong doesn't mean you need to appeal it.
ALLEN: You know, in any case, Ailsa, appeal or not, this case is not going to go to a trial before the election.
CHANG: OK. But what if the Justice Department and special counsel Jack Smith do file an appeal? What is the likelihood that Judge Cannon's ruling is upheld?
ALLEN: Well, most legal experts that have been polled on this believe the 11th Circuit would reverse her decision. Some, like Norm Eisen, a senior fellow at the Brookings Institution, believe the matter is so important that an appeal is almost mandatory.
NORM EISEN: Not only should Jack Smith appeal, but when he goes to the 11th Circuit, he should also ask them to remove Judge Cannon.
ALLEN: You know, it is possible the appeals court could uphold Cannon's ruling 'cause her order does track closely with comments Supreme Court Justice Clarence Thomas made in his opinion on the - in the recent presidential immunity case. If the appeals court agrees with Cannon and Justice Thomas, that would put the 11th Circuit in conflict with the D.C. Circuit of Appeals Court. So then it would go to the Supreme Court. And we have to see whether there's - if they take the issue and whether there are five votes to get rid of the special counsel's office.
CHANG: That is NPR's Greg Allen in Miami. Thank you so much, Greg.
ALLEN: You're welcome. Transcript provided by NPR, Copyright NPR.
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