Special counsel Jack Smith speaks to members of the media at the U.S. Department of Justice building in Washington, D.C., on Aug. 1, 2023.Saul Loeb | AFP | Getty Images

Special counsel Jack Smith seeks pause in Trump classified documents case appeal

by · CNBC

Key Points

  • Special counsel Jack Smith asked a federal appeals court to pause proceedings in his bid to overturn a judge's decision to toss out the criminal classified documents case against President-elect Donald Trump and two other defendants.
  • Smith's request came days after he asked a federal judge in Washington, D.C., for a pause in proceedings in another criminal case, in which Trump is charged with crimes related to his attempt to reverse his defeat in the 2020 presidential election.
  • Both moves reflect the fact that the Department of Justice is expected to drop both criminal cases against Trump because of his election as president last week.

Special counsel Jack Smith asked a federal appeals court Wednesday to pause proceedings in his effort to overturn a judge's decision to dismiss the criminal classified documents case against President-elect Donald Trump and two other defendants.

Smith's request cited Trump's election last week to a second term in the White House.

On Friday, the special counsel cited that same reason in asking a federal judge in Washington, D.C., for a pause in proceedings in another criminal case, where Trump is charged with crimes related to his attempt to reverse his defeat in the 2020 presidential election. That request was granted.

Both moves reflect the expectation that the Department of Justice will drop both criminal cases against Trump because of his election.

DOJ policy says that the department cannot criminally prosecute a sitting president. But even if that policy was not in effect, Trump has the power as president to order his attorney general, who will head the DOJ, to toss out both cases.

Trump on Wednesday announced that he would nominate the controversial Florida congressman Matt Gaetz as his attorney general.

NBC News reported earlier Wednesday that Smith and his team of prosecutors in the special counsel's office intend to resign before Trump is sworn in as president in January. Trump was expected to fire Smith if he did not quit.

On Tuesday, a New York state judge granted a request by the Manhattan District Attorney's Office for a one-week delay in proceedings in a third criminal case against Trump to give prosecutors time to consider how his electoral victory affects that case. Trump is scheduled to be sentenced in the case on Nov. 26 on nearly three dozen counts of falsifying business records related to a 2016 hush money payment to porn star Stormy Daniels.

Florida federal court Judge Aileen Cannon earlier this year dismissed the criminal case against Trump in which Smith had accused the Republican of illegally withholding classified government records after leaving office in early 2021 and obstructing efforts by officials to recover them.

Cannon, who was nominated by Trump, also tossed out obstruction charges against Trump's valet, Walt Nauta, and a worker at his Mar-a-Lago resort, Carlos de Oliveira.

Cannon ruled that Smith's appointment as special counsel by Attorney General Merrick Garland, who heads the DOJ, violated a clause in the U.S. Constitution that regulates how government officials are appointed.

Smith asked the 11th Circuit U.S. Court of Appeals to overturn Cannon's ruling.

But in its filing to that court on Wednesday, Smith's office wrote, "As a result of the election held on November 5, 2024, one of the defendants in this case, Donald J. Trump, is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025."

Read more CNBC politics coverage

"The Government respectfully requests that the Court hold this appeal in abeyance— and stay the deadline for the Government's reply brief, which is currently due on November 15, 2024 — until December 2, 2024, to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy," the filing said.

The filing also said that if the delay is granted, prosecutors will inform the appeals court "of the result of its deliberations — and, if appropriate, file its reply brief — no later than December 2, 2024."

Trump is charged in Atlanta state court crimes related to his attempt to reverse President Joe Biden's White House win in 2020.

But Trump is not expected to stand trial in that case while serving as president. However, the case could be stayed until he leaves office in 2029.