Special Counsel Jack Smith is down — but not out — in his push to convict President Trump for storing classified documents at Mar-a-Lago.

Now, in the shadow of an election and amidst the rubble of a case once thought to be the most serious and solidly built of all the prosecutions of Trump, Mr. Smith has a set of fateful decisions to make if his charges are ever to find a path to a jury. Cunning — or, say, sechel — will be required for a conviction.  

Judge Aileen Cannon’s stunning dismissal of the 40 charges against Trump — and those against his co-defendants, Waltine Nauta and Carlos De Oliveira — was downstream of her finding that Mr. Smith’s appointment as special counsel when he was prosecuting war crimes at the Hague violated the Constitution.

The judge ruled that the manner of Mr. Smith’s hiring by Attorney General Garland violated the Appointments and Appropriations Clause. She determined that since the special counsel was not confirmed by the Senate, he needed explicit congressional authorization. She was not persuaded that the statutes cited by Messrs. Smith and Garland sufficed.

Once Judge Cannon determined that Mr. Smith’s appointment was crosswise with the law, she could have elected to keep the case he brought. She determined, though, that “​​dismissal of this action is the only appropriate solution for the Appointments Clause violation.” She adds that because Mr. Smith’s “exercise of prosecutorial power has not been authorized by law, the Court sees no way forward aside from dismissal.”

If, as Judge Cannon writes, “there can be no valid officer without a valid office,” the indictment that bears Mr. Smith’s name and signature is defective. As a final judgment, that ruling can be appealed to the riders of the 11th United States Appeals Circuit. Such petitions for review, though, can take up to a year to litigate. Mr. Smith could apply for an expedited appeal, which would push the petition to the front of the line. 

Mr. Smith was successful in securing an expedited appeal in the January 6 case, but that concerned the issue of immunity, which surfaced via an “interlocutory” request for review, meaning that it was a threshold issue that required immediate disposition. The ruling, though, presents no such case for urgency, unless Mr. Smith can convince the riders that his desire for a hearing before the election is legally, as opposed to merely politically, salient. 

The special counsel could elect for a more daring tack, and take his cause straight to the Supreme Court via an appeal for certiorari before judgment, meaning a request that the Nine decide the issue prior to the court of appeals. Here too, though, Mr. Smith would be required to furnish a better reason for this extraordinary departure from the usual course.

The Supreme Court declined this species of request from Mr. Smith in respect of the immunity case, instead handing down a ruling — against Mr. Smith — on the final day of its term. It could take years to reach the court on a normal schedule. 

Mr. Smith could also pursue more exotic options. One possibility would be to renounce any ambition for appeal, and instead rely on the United States attorney for the Southern District of Florida — Markenzy Lapointe, a Haitian-born appointee of President Biden and a Marine Corps veteran — to refile the charges, in whole or in part. The special counsel could serve as an assistant to the case.  

Mr. Lapointe would have to convene another grand jury to hand up charges, though he’d have the benefit of Mr. Smith’s legwork. Federal grand juries elect to charge more than 95 percent of the time. New charges would mean randomized selection of a new judge, via the same process that yielded Judge Cannon this time. The Sun reached out to Mr. Lapointe for comment.   

A decision by the special counsel to step aside, though, would carry its own risk. If Trump wins re-election, he could easily fire, say, Mr. Lapointe — a political appointee — and neutralize the case. It would be more difficult to fire Mr. Smith. The relevant regulations appear to assign that task to the attorney general, and appear to demand that “good cause” be furnished for a dismissal. If Trump wins and his attorney general attempts to fire Mr. Smith, the special counsel could sue to keep his job.   

Could Mr. Smith not only reverse the ruling against him, but also force Judge Cannon off the case? A law professor who argued the Appointments Clause question before Judge Cannon, Joshua Blackman, tells the Sun that recusal is a “fantasy.” Federal law requires it “in any proceeding” in which the judge’s “impartiality might reasonably be questioned.” Mr. Blackman cites Judge Cannon’s 93-page opinion marbled with citations as evidence that partiality is not at play.

Something like Mr. Smith’s dream scenario transpired more than a decade ago at Manhattan. In October 2013 Judge Shira Scheindlin was removed from two cases that examined the New York Police Department’s “stop, question, and frisk” policy. That decision was a sua sponte one by the riders of the Second Appeals Circuit, meaning that it was entirely at the court’s initiative, unprompted by a request from either party.

The riders reasoned that the “appearance of impartiality surrounding this litigation was compromised” by Judge Scheindlin’s “improper application of the Court’s ‘related case rule,’ … and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.” Months before her removal, Judge Scheindlin issued a sweeping injunction against the NYPD with respect to stop, question, and frisk.

The “related case rule” allows judges to accept a new case if it is related to an earlier case already on a judge’s docket. One law review article argues that over a period of 14 years Judge Scheindlin “had been granted near-exclusive jurisdiction over one category of case: Those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies.” The rule was amended following her disqualification.

While the United States Court of Appeals for the 11th Circuit has overruled Judge Cannon before — with respect to her appointment of a special master — her acceptance of this case does not appear comparable to Judge Scheindlin’s fiefdom. The rules of the Southern District of Florida mandate that “cases shall be assigned on a blind rotation basis.”