Special Counsel Jack Smith’s request that the 11th United States Appeals Circuit drop his appeal of Judge Aileen Cannon’s dismissal of the Mar-a-Lago case against Trump ends the special counsel’s pursuit of the 45th president who won election to be the 47th.

Mr. Smith had asked the 11th Circuit to overrule Judge Cannon’s ruling that he was unlawfully appointed by Attorney General Garland. She determined that the defect in his hiring — he was not confirmed by the Senate  — could only be remedied by dismissing the charges he brought against Trump and two others for stashing secret documents at Mar-a-Lago. 

Now, Mr. Smith explains that “dismissing the appeal as to defendant Trump will leave in place the district court’s order dismissing the indictment without prejudice as to him.” The cases against the president-elect’s two co-defendants — Waltine Nauta and Carlos De Oliveira  —will continue. Trump, though, could pardon them once he takes the oath of office. 

Mr. Smith adds that he “has consulted with counsel for defendant Trump, who does not object to this motion.” Mr. Smith adds that he “has consulted with counsel for defendant Trump, who does not object to this motion.” If the circuit riders grant his request to dismiss the appeal, the case against Trump for violations of the Espionage Act and obstruction statutes will end “without prejudice,” meaning that it could be refiled at a later date. The special counsel has asked that his January 6 case against Trump be dismissed on similar terms. 

The documents case against Trump was once thought to be the strongest of the four criminal prosecutions of the president-elect because of the reams of documents found when a team of FBI agents searched the Palm Beach manse. Mr. Smith’s prosecution hit an obstacle, though, in the form of Judge Aileen Cannon, who slowed the government’s all-fired rush to a trial before she dismissed the case altogether.  

Judge Cannon, though, stepped out on a limb when she ruled that Mr. Smith was unlawfully appointed. The Supreme Court in United States v. Nixon appeared to rule that the attorney general possessed the power to appoint subordinate prosecutors, a precedent that the circuit riders at the District of Columbia have adopted as binding. Judge Cannon, though, ruled that it was “dictum,” and therefore non-binding.    

The 11th Circuit was set to review that conclusion, and they have overruled Judge Cannon before, most memorably with respect to her appointment of a special master to chaperone the government’s handling of the evidence it collected. The circuit riders accused her of issuing a ruling that would amount to “a radical reordering of our case law” that would “violate bedrock separation-of-powers limitations.”

Now, Judge Cannon’s ruling with respect to Mr. Smith’s appointment will stand. Another opportunity will have to arise for the Supreme Court to weigh in on the constitutionality of the current iteration of the special counsel statutes. At least two justices — Clarence Thomas and Brett Kavanaugh — have signaled that they are interested in revisiting that question.