WASHINGTON — Special counsel Jack Smith on Monday urged an appeals court to reopen the classified documents case against former President Donald Trump, writing that a lower court's decision to dismiss the charges “deviated” from legal precedent and “inadequately took into account” history.
Smith submitted an opening brief to the federal appeals court in Atlanta, calling his appointment valid and arguing that U.S. District Judge Elaine Cannon's decision to dismiss charges against Trump and his co-defendants was wrong.
Cannon Indictment dismissed A lawsuit was filed in July against Trump, aide Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira, finding that Smith's appointment as special counsel violated the Appointments Clause of the Constitution.
Trump has until September 26 to respond to the special counsel's arguments.
In their filing, Smith and his team wrote that prior court decisions and history confirm that the attorney general has the authority to appoint special counsels to carry out law enforcement missions, as well as the appointment of special counsels by past attorneys general and “congressional support of that practice through appropriations and other legislation.”
“The Attorney General validly appointed a special counsel, who was also properly funded,” prosecutors said. “In ruling otherwise, the district court departed from binding Supreme Court precedent, misinterpreted the statute authorizing the appointment of a special counsel, and inadequately took into account the long-standing history of Attorney General appointments of special counsel.”
He said Cannon's “contrary” view that Smith was unlawfully appointed “conflicts with all other decisions, including those of the Supreme Court, that the attorney general has such authority, and is contrary to widespread and longstanding appointment practices across the Justice Department and the Government.”
Prosecutors wrote that Cannon's decision “lacks merit” and argued that Congress authorized the appointment of special counsels by the attorney general. Smith's team cited a landmark 1974 Supreme Court decision — United States v. Nixon — that established the attorney general's “appointing authority.”
In that case, the Supreme Court ordered then-President Richard Nixon to comply with a special prosecutor's subpoena for tapes and documents related to the Watergate scandal.
“Nixon decisively defeated defendants' challenge to the appointment of special counsel, as has every other court that has considered the issue,” Smith argued in his filing.
Documents matter
Blacksmith accused the former president He has been charged with 40 counts related to the alleged illegal handling of documents bearing classification marks after he left office in January 2021. Federal investigators About 300 sensitive records were recovered The haul includes more than 100 items seized from Trump's South Florida estate, Mar-a-Lago, in 2022, including more than 100 confiscated when the FBI conducted a court-authorized search of the property in August.
Of these, 32 documents fall under the charges of knowingly and illegally possessing national defense information. Along with Trump, Nauta and de Oliveira have also been accused of obstructing the Justice Department's investigation. All three have pleaded not guilty.
Trump insists on pressing charges Rejected on multiple groundsIncluding claims that Smith was illegally appointed and that his office was funded in violation of the Appropriations Clause. Cannon heard arguments on his request In June, he took the unusual step of allowing outside lawyers to participate in the proceedings.
A judge appointed to the federal bench by Trump granted the former president's request to dismiss the charges in mid-July and ordered the case closed.
“The Judgment Clause is an important constitutional restriction arising from the separation of powers, and it gives Congress a well-informed role in determining the propriety of granting appointment power to inferior officials,” Cannon wrote in his 93-page decision. “The special counsel position effectively usurps that important legislative authority, transfers it to the head of the department, and in the process threatens the structural independence inherent in the separation of powers.”
Smith immediately said he would appeal Cannon's decision to the U.S. Court of Appeals for the 11th Circuit. The dispute over the constitutionality of his appointment is expected to reach the Supreme Court.
Special Counsel's Argument
In their filing, prosecutors defended Smith's appointment based on historical and legal precedent and highlighted various laws they claimed Cannon misinterpreted.
“The annual Congressional appropriations funding these offices and officials confirm the Attorney General’s power to appoint — and to ratify, if further confirmation is necessary,” the special counsel wrote, adding that the appointments they promote “are not unique to the Department of Justice.”
The filing warned that Cannon's decision, if upheld, would have far-reaching consequences because it “unnecessarily casts doubt” on past appointments of Justice Department and executive branch officials. Adopting his interpretation of the law risks “invalidity,” Smith wrote.[ing] The appointment of each member of the Department who exercises significant authority.”
Smith and his team cautioned, “At a minimum, this list includes high-level departmental positions such as Deputy Solicitor General and Deputy Assistant Attorney General.”
In addition to the Justice Department, the special counsel said the lower court's reasoning would also raise questions about “hundreds” of executive branch appointments, including the departments of Defense, State, Treasury and Labor.
“The unbelievability of that result underscores that the district court's new findings lack merit,” Smith's office wrote.
Cannon's decision comes just weeks after Justice Clarence Thomas wrote a concurring opinion in a separate case involving Trump that questioned whether Smith's office was “established by law.” The conservative judge, who was joined by no other member of the court, wrote that the appointment should undergo further scrutiny before a hearing can be held in that case.
Thomas wrote the opinion in a case arising from another impeachment by Smith over the former president's conduct after the 2020 presidential election. Trump claimed presidential immunity and the case reached the high court.
“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized by the American people,” Thomas wrote, specifically addressing an issue not raised in the case. “Thus lower courts must answer these essential questions concerning the appointment of a special counsel before proceeding.”
The Smiths Appointed special counsel He will be appointed to oversee two federal investigations into Trump in 2022 — one into his handling of sensitive government records and another into his alleged efforts to subvert the transition of presidential power after the 2020 election.
His selection was not unusual, as attorneys general from Republican and Democratic administrations have appointed special counsels to lead sensitive investigations in recent years. Several federal judges have rejected constitutional challenges to appointments that were similar to Trump's. For example, a three-judge panel of the US Court of Appeals for the District of Columbia Circuit upheld the appointment of Robert Mueller as special counsel in 2019.
The 11th Circuit has already reviewed one of Cannon's rulings arising from Trump's handling of classified documents. In December 2022, a three-judge panel overturned unanimously His decision to appoint an independent arbitrator to investigate materials seized by the FBI during its search of Mar-a-Lago.
The decision by three judges, two of whom were appointed by Trump, ended the so-called special master review and allowed the Justice Department to use documents taken from Mar-a-Lago in its investigation.
The special counsel has suffered several setbacks in his cases against Republican presidential candidate Trump. In the prosecution arising from the former president's actions during the 2020 election, the proceedings were delayed for months Trump argued that presidential immunity protected him from federal charges.
supreme court Verdict in July that a former president is immune from prosecution for official actions taken while in the White House. The conservative majority found that Trump cannot face charges arising from some of the conduct alleged in the 45-page indictment — his discussions with Justice Department officials about overturning the election results — but left it to the U.S. District Court judge overseeing the case to analyze the remaining charges to determine whether they include actions for which Trump is immune from prosecution.
Prosecutors from Smith's team and Trump's lawyers have until Friday to propose a schedule for moving forward in the case. The two sides are then scheduled to appear before US District Judge Tanya Chutkan, who has been assigned to the case, for a hearing on September 5.
Cannon's dismissal of the documents case, as well as ongoing appeals court proceedings, and delays in the 2020 election case, mean that Trump will not be prosecuted in any prosecution before the November 5 election.