Special counsel Jack Smith on Wednesday asked the 11th Circuit Court of Appeals to pause proceedings in an appeal launched in President-elect Trump’s Florida documents case.
The filing comes as the court has been tasked with reviewing a lower court decision from Judge Aileen Cannon that found Smith was unlawfully appointed.
Using nearly identical language to that filed in a prior request to press pause on Trump’s election inference case, Smith’s team wrote the abeyance would give “the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy.”
As in the other case, Smith’s team said he would file an update with the court on Dec. 2.
It’s the likely end to an appeal legal observers thought Smith had a good chance of winning, after Cannon dismissed the case.
Cannon’s ruling flew in the face of 50 years of court rulings on special counsel appointments, including when former President Nixon’s case came before the Supreme Court.
The 11th Circuit had previously reversed another Cannon ruling, ending a special master review of the classified documents collected at Trump’s Florida estate.
A win would have returned the case to Cannon for further proceedings on the Espionage Act and obstruction of justice charges faced by Trump after he refused to return classified records, but Trump’s electoral win has jeopardized both cases.
The filing comes after news broke that Smith plans to resign ahead of Trump’s inauguration, after which the president-elect said he had planned to fire the special counsel “within two seconds.”
A Justice Department memo bars prosecutions of a sitting president, with it’s Office of Legal Counsel concluding in 1973 that “criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Smith has other options for winding down his cases, including issuing a report on his findings, which Attorney General Merrick Garland could release to the public.
