Trump's streak of luck in his criminal proceedings may be over | Trials against Donald Trump

On the agenda: the return of two criminal cases against Trump?

Donald Trump's winning streak in his criminal proceedings may have ended this week when Special Counsel Jack Smith's team fired a series of volleys that could revive two jeopardized prosecutions.

Smith filed a new indictment against Trump in federal court in Washington, DC on Tuesday over the former president's efforts to overturn the 2020 election. While Smith's actions do not dramatically change the case against Trump, the new indictment could protect the case after the Supreme Court ruled in July that he and other presidents enjoy broad immunity from prosecution for official acts.

“Today, a grand jury in federal court in the District of Columbia returned a new indictment charging the defendant with the same crimes alleged in the original indictment,” Smith's lawyers wrote in court documents.

“The new indictment, presented to a new grand jury that had not previously heard evidence in this case, reflects the government's efforts to respect and implement the Supreme Court's decisions and instructions in Trump v. United States.”

Prosecutors repeatedly stressed that Trump acted outside of his official duties. “The defendant had no official duties related to a state's certification of the election results,” they wrote. Just a day earlier, Smith's office on Monday asked a federal appeals court to reopen the secret records case that Trump-appointed trial judge Aileen Cannon dismissed on July 15. They claimed Cannon's dismissal of the case – based on her belief that Smith's appointment was unconstitutional – was wrong.

As a reminder, Cannon believed that Smith's appointment was unlawful because he was an outside official, not a Senate-confirmed Justice Department official. He wrote, “Because Special Counsel Smith's exercise of prosecutorial power is not authorized by law, the Court sees no alternative but to dismiss the indictment.”

In their 81-page argument, prosecutors claim Cannon ignored previous court rulings. In their appeal, they insist Cannon wrongly focused on whether Smith was already a Justice Department official or Senate-confirmed.

The U.S. attorney general, they said, has broad authority under federal law to select prosecutors. And they further argued that Cannon wrongly rejected at least four federal laws that authorized Smith's appointment. One of them, Section 515 of Title 28 of the U.S. Code, allows a U.S. Justice Department official to preside over trials if “specifically directed by the Attorney General under law to do so,” they said.

They also pointed out that Section 533 states that the Attorney General can appoint officials to investigate and prosecute crimes against this country, and that it gives Attorney General Merrick Garland the authority to appoint Smith as special counsel in the Trump case.

As the Guardian's Hugo Lowell noted, the legal battle over the law is likely to be at the heart of the appeal. Prosecutors and Trump's lawyers already argued over the four laws during a hearing lasting several days in Cannon's courtroom before she dismissed the case.

She held that while Section 515 allows the Attorney General to choose a special counsel, it applies only to serving Justice Department officials.

The prosecutors' motion to the 11th Circuit Court of Appeals is the beginning of what is almost certainly a lengthy legal battle. The appeals process could take months, if not years. And the 11th Circuit's decision will likely be argued before the U.S. Supreme Court.

After Smith filed his appeal papers, legal commentators were divided on how his argument would be received. Norm Eisen wrote on X that Smith's argument was strong, pointing to historical examples of special counsel proceedings.

“Cannon's decision to dismiss the case was based on a misinterpretation of the Constitution that Smith's appointment was unlawful. Every single court that has heard the matter (including the Supreme Court) has taken a different position,” Eisen wrote Monday. He called Cannon's opinion “absurd” because attorneys general have been conducting special investigations without Senate approval for decades.

The Supreme Court, Eisen said, upheld the Watergate special counsel's subpoena to obtain then-President Richard Nixon's Oval Office tapes in 1974 – citing the same laws that gave Smith the authority. And, Eisen said, the U.S. Court of Appeals in Washington DC cited the same case when it upheld the appointment of former special counsel Robert Mueller.

Whatever the outcome of the appeal, the question remains whether Cannon – whose rulings have largely favored Trump – will continue the case. “Perhaps the most interesting thing about Jack Smith’s brief to the 11th Circuit is what not Inside: a motion to remove Judge Aileen Cannon from the case,” MSNBC’s Lisa Rubin noted on X.

Eisen and other lawyers have suggested that the 11th Circuit could dismiss Cannon without Smith's request, but the likelihood is questionable. Elie Honig, a former federal prosecutor, told CNN that “appeals courts sometimes dismiss a district judge on their own initiative,” but “that's extraordinarily rare.”

“That happens very rarely,” Honig said. “So if they reverse their decision, I think it's possible they could remove her as well.”

That has dampened some expectations about what Smith's potential victory would mean in the long run. “The Justice Department has a good chance of prevailing, but retrial alone will not resolve a lingering challenge Smith will still face: Cannon himself,” wrote MSNBC's Jordan Rubin, a former New York prosecutor.

Companions and victims

Rudy Giulianithe former New York mayor and former Trump attorney, will go on trial in his election fraud trial in Arizona on January 5, 2026. Other Trump allies in the case, such as former White House Chief of Staff Mark Meadows and former Trump attorney John Eastman, will also go on trial that day, according to CNN.

Georgia State officials were sued Monday by Democrats who claim new voting rules are illegal. The lawsuit, filed in Fulton County court, concerns rules green-lighted by the GOP-controlled Georgia State Election Board that would give individual county election officials the power to delay or cancel the certification of votes, Reuters reports. At an Aug. 3 rally in Georgia, Trump shouted his support for three of the Republican members of the state election board, calling them “pit bulls fighting for honesty, transparency and victory.”

Important dates

Isaac Hayes III's fight against Trump's unauthorized use of his late father's music goes to court on 3 September for an emergency hearing. Hayes' family filed a lawsuit against Trump for using the soul and funk singer's song “Hold On, I'm Comin'” at campaign events without permission.

Judge Juan Merchan is expected to decide on 16 September whether a recent U.S. Supreme Court ruling granting Trump broad immunity for official acts will protect him from prosecution in his Manhattan criminal case. If Merchan does not buy Trump's argument that the Supreme Court decision grants him immunity, he is expected to 18 September for 34 cases of falsification of business documents.

To 26 SeptemberA New York appeals court is scheduled to hear oral arguments in Trump's civil fraud case. New York Attorney General Letitia James obtained a judgment against him for fraud totaling more than $450 million based on false real estate appraisals. Trump is fighting the outcome of this case.