Jack Smith’s Pending Eleventh Circuit Case Against President-Elect Trump: Why the Delay?

 

 

Jack Smith lost before Judge Cannon (United States District Court for the Southern District of Florida), and subsequently, Smith appealed Judge Cannon’s final order to the United States Court of Appeals for the Eleventh Circuit. Smith’s opening brief and Trump’s opposition brief, as well as amici supporting each side, were all filed before the November 5, 2024 presidential election. Smith’s reply brief was due November 15, 2024. Smith never filed that reply. Instead, he asked for an extension to file his reply and to reconsider his position in light of new circumstances. Smith requested an extension until Monday, December 2, 2024. The extension was granted.

 

Leaving aside whether or not the Special Counsel and his office should have been prepared to move forward in a timely manner in the event of either a Trump victory or loss in the election, one might ask: Why does Smith need nearly a full calendar month to figure out what his (and, implicitly, the DOJ’s) position is?

 

I have refrained from commenting on this issue for a variety of reasons. First, I have filed an amicus brief on the merits of this litigation, and it might look like overreach to speculate on the motives of the Special Counsel, particularly, when doing so in public and not in court filings. Second, I am not a DOJ alum, and I have no inside information about the conversations taking place among Smith and his subordinates, among the AG and his senior colleagues, and the conversations between Smith’s group and the AG’s group. But I have had some thoughts. And recently I came across a November 6, 2024 Lawfare episode in line with my own thinking. From Benjamin Wittes et al., ‘Lawfare Live: What Does a Second Trump Term Look Like?,’ Lawfare (Nov. 6, 2024, 10:27 AM) (at 2:05–4:03):

 

Scott R. Anderson: Our operational thesis, with the understanding that this is pretty unprecedented territory, and there is not a lot of hard law guiding it …. is that once you get to the point where you have somebody who is being criminally prosecuted or who has been convicted, and they become acting President and, in particular, perhaps, President-elect to some degree as well, all of a sudden you have a real conflict of legal principles between the federal government drive to the fact you need a functional and operational President, and nothing about being indicted or being charged or convicted in anyway disqualifies anyone from being President, in fact, probably, constitutionally, it cannot, except maybe, if it was tied to Section 3 of the 14th Amendment…. which none of the statutes he has been charged/prosecuted under have been are.

 

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You have to reconcile this need to have a federal presidential principle that the President is operational and functional and that could be in tension with state law and with other principles like the administration of justice.

 

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Essentially, that the state charges are the more complicated ones. The federal charges are likely to just go away. We are already seeing reports that Jack Smith and the Justice Department are working to find a way to wind down those charges. There is a complication in the [Eleventh Circuit] Mar-a-Lago case. As they [Smith and the DOJ] particularly don’t like the current ruling by Judge Cannon that gets right at the matter on the basis of [Defendants’] Appointments Clause argument relating to Jack Smith’s appointment. They don’t want to have precedent around that lingering around although district court opinions are not precedent. They don’t want to have a bad opinion about that loitering around. But they still want to have an orderly wind down of those cases because the Justice Department has a long-standing position that you cannot prosecute a sitting President. And that would be consistent with that.

 

Generally, I agree with Scott Anderson. Smith’s delay in filing his reply (or any other papers) may be caused by the fact that although DOJ wishes to make the Mar-a-Lago prosecution come to a close, the DOJ does not want Cannon’s opinion to remain good case law. Why is it good case law? Because, at this juncture, Cannon’s decision has not been vacated or reversed. That said: Anderson is clearly wrong in asserting that a federal district court opinion is not a precedent. Certainly, it is not a binding precedent. It is not even binding in the Southern District of Florida among other judges in that district. But it is a precedent, and it carries persuasive force based on how future judges find its reasoning sound. If Anderson were correct, if Cannon’s decision was not precedential at all, then the powers that be in DOJ would be unconcerned in leaving Cannon’s decision as it now stands.

 

Seth Barrett Tillman, ‘Jack Smith’s Pending Eleventh Circuit Case Against President-Elect Trump: Why the Delay?,’ New Reform Club (Nov. 21, 2024, 6:53 AM), <https://reformclub.blogspot.com/2024/11/jack-smiths-pending-eleventh-circuit.html>;