Special counsel Jack Smith appeals decision to dismiss Trump's classified documents case : NPR

MIAMI — Special counsel Jack Smith says U.S. District Court Judge Elaine Cannon was wrong when she last month dismissed the case against former President Donald Trump for mishandling classified and top-secret documents at his Mar-a-Lago estate in Florida.

In a brief filed with the 11th Circuit Court of Appeals, Smith said Judge Cannon also erred in ruling that the process used to appoint the special counsel was unconstitutional.

Smith is appealing Cannon's decision, asking the 11th Circuit Court to overturn her order dismissing the case and send it back “for further proceedings.” In his brief, the special counsel has not asked the court to remove the Trump-appointed judge from the case.

Even before his dismissal, Cannon had been criticized by legal observers for his delays and rulings in favor of Trump. If the appeals court overturns his decision, many legal observers believe it may also ask Cannon to recuse himself from the case.

In his ruling last month, Judge Cannon said Attorney General Merrick Garland had overstepped his constitutional authority by appointing a prosecutor who was not subject to congressional approval. “The designation of special counsel effectively usurps that important legislative authority,” he wrote, “threatening the structural independence inherent in the separation of powers.”

Cannon's opinion contradicts decades-old rulings by other federal courts upholding the constitutionality of the special counsel's office.

In his analysis, Cannon examines a key Watergate-era Supreme Court decision from 1974. Cannon determined that the judge's “passing remarks” “are not binding precedent on future cases.” But in his brief, Smith says, “the District Court erred.” In that case, Smith says the Supreme Court held that “the Attorney General has the statutory authority to appoint a special prosecutor equivalent to a special counsel.”

Smith lists four laws passed by Congress that authorize the appointment and funding of the Office of Special Counsel.

“Precedents and history confirm that authority,” Smith writes, “as does the long tradition of special-counsel appointments by the attorney general and the support of that practice by Congress.” Smith points out that special counsels have been appointed by the attorney general for more than 150 years, and were used after the Civil War to prosecute Jefferson Davis for treason and a conspirator in President Lincoln’s assassination.

Trump's lawyers have 30 days to file their response to Smith's brief. Smith is asking the 11th Circuit to schedule oral arguments, believing they will “aid the Court's decision-making process in this matter of vital public importance.”