Is Jack Smith gearing up for a trip to the Eleventh Circuit?

Warren LeMay

On March 6, two notices of attorney appearance were entered by the Government on the docket in the Mar-a-Lago documents case, both for noted appellate specialists.

James Pearce - who argued for the Special Counsel against the notion of absolute presidential immunity in D.C. - was added to the team, with his name swiftly appearing on the Government’s response to a motion Trump had submitted arguing that Jack Smith’s appointment was “unlawful”. 

Cecil VanDevender was also added to the case, having previously argued in favor of upholding Judge Chutkhan’s gag order ruling in D.C. His name was then included in multiple filings, including the Special Counsel’s responses to Trump’s motions to dismiss based on the Presidential Records Act and for selective and vindictive prosecution. 

Their appearances are noteworthy as it suggests that Jack Smith is preparing his team for an appeal. Last week at a scheduling hearing, Judge Cannon indicated that she was going to order that sensitive witness information be placed on the public docket, something the Special Counsel had previously argued against and urged her to reconsider, calling such a move a “clear error”. She has made several other concerning decisions in the days since.

The amicus briefs 

Amicus briefs are submitted by people or organizations that are not party to the case but feel that they can offer insight or expertise to help a judge come to a decision. Since Trump submitted his multiple motions to dismiss, two outside parties have asked for leave to file amicus briefs in support of his positions. Cannon permitted both to be filed.

Stephen Miller’s far-right outfit America First Legal argued in their brief that the indictment should be dismissed because Trump is entitled to keep national defense information under the Presidential Records Act. This is clearly wrong and would completely undermine the entire rationale for having the PRA in the first place.

As he has done twice at the Supreme Court, former Attorney General Edwin Meese has filed an amicus brief, joined by Citizens United amongst others, arguing that Jack Smith was improperly appointed as all Special Counsel positions are inherently unlawful. As the Government points out in response to Trump raising this argument himself, this argument has been rejected previously (it’s something Meese tried with Mueller, too).

On March 6, when granting leave to file the amicus briefs, Judge Cannon claimed that the documents “may be of considerable help” to her in making a decision on whether to dismiss the indictment completely. This is concerning as both briefs are littered with conspiratorial thinking and unhinged arguments that aren’t based in fact or law. How anything contained within them could be considered to offer “considerable help” is beyond comprehension.

Contrast this with Judge Chutkhan in D.C., who has rejected multiple attempts from third parties hoping to file such briefs, writing each time “although courts have in rare instances exercised their discretion to permit third-party submissions in criminal cases, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules contemplate the filing of amicus curiae briefs. At this time, the court does not find it necessary to depart from the ordinary procedural course by permitting this filing.” Clearly, Judge Cannon thinks differently.

The hearing

On March 7, Judge Cannon announced that there would be a hearing on Trump’s motions to dismiss the indictment based on the Presidential Records Act and for unconstitutional vagueness. The hearing will be held from 10:00am on March 14. The Government had opposed such a hearing and the issues aren’t even fully briefed yet. Trump has until 8:00am on the day of the hearing to file his reply to the Special Counsel’s opposition to both motions to dismiss. That gives Cannon less than two hours to read the defense replies and research the relevant case law being discussed and how it would apply. The fact that she even feels that a hearing is necessary is bizarre, these issues aren’t difficult to sort through as Trump has no leg to stand on.

Thank goodness Jack Smith has added James Pearce and Cecil VanDevender, just at the right time. The moment Judge Cannon makes a reversible error, which seems to get closer every day, they’ll be ready to go straight to the Eleventh Circuit.