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By Sean O'Driscoll
Senior Crime and Courts Reporter
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Donald Trump has until the eve of the presidential election to respond to a prosecution appeal in his classified documents case in which the charges were dismissed by Judge Aileen Cannon in July.
On Monday, the 11th Circuit Court of Appeals granted Trump's request for a time extension so that he could file his reply brief later that day.
It also gave him until the close of business on November 4 to file his appendix of evidence in the case.
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Trump was facing 40 federal charges in Cannon's court over his alleged handling of sensitive materials seized from his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House in January 2021. He was also accused of obstructing efforts by federal authorities to retrieve them.
The Republican presidential nominee had pleaded not guilty and has said the case is part of a political witch hunt.
Newsweek sought email comment from Trump's attorney on Tuesday.
In her dismissal of the charges on July 15, Cannon noted that there is no constitutional backing for appointing Jack Smith, a "private citizen," as a Department of Justice prosecutor in charge of all Trump's federal indictments.
Smith is now appealing that decision before the 11th Circuit appeal court.
Greg Germain, a law professor at Syracuse University in New York, told Newsweek that Cannon's reasons for dismissing the case are "extremely weak," but that the Supreme Court could side with her if the case goes to the nation's highest court.
"There is no way to know for sure what the Supreme Court will say, but given the Supreme Court's extremely broad view of separation of powers in the Trump immunity case, there is a good chance that the court will agree with Judge Cannon that the broad unsupervised powers given to Jack Smith are unlawful and that the special counsel regulation is overbroad," Germain said.
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The appeal court's one sentenced order was filed on Monday by the clerk, David Smith.
The order illustrates that, no matter which way the appeal court rules, any reinstatement of the case against Trump will not come before the presidential election.
If elected, Trump could in theory appoint a favorable attorney general to dismiss the indictment.
Trump told radio host, Hugh Hewitt, on October 24 that he would fire Smith within "two seconds" of being inaugurated as president.
Even if Trump was unable to fire Smith, Justice Department written rules state that a sitting president should not be put on trial and prosecutors would have to wait until he left office to resume the case.
The appeal will likely take several months. If Trump loses, he is expected to appeal the decision at the Supreme Court and if unsuccessful, the case will return to the trial judge for more pretrial hearings.
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