Special counsel Jack Smith urged a federal appeals court on Monday to reinstate the classified documents case against former President Donald Trump, saying a judge’s decision that dismissed the prosecution was at odds with longstanding Justice Department practice and must be reversed.
Smith’s team said U.S. District Judge Aileen Cannon made a grievous mistake by ruling that Smith was unlawfully appointed by Attorney General Merrick Garland. That position, prosecutors wrote in a brief filed with the Atlanta-based appeals court, runs counter to rulings by judges across the country as well as “widespread and longstanding appointment practices in the Department of Justice and across the government.”
If allowed to stand, they warned, it could ”jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch.”
“The Attorney General validly appointed the Special Counsel, who is also properly funded,” prosecutors wrote. “In ruling otherwise, the district court deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the Special Counsel’s appointment, and took inadequate account of the longstanding history of Attorney General appointments of special counsels.”
At issue is a provision of the Constitution known as the Appointments Clause, which requires that certain public figures — including judges, ambassadors and “all other officers of the United States” — be appointed by the president and confirmed by the Senate. But the clause also includes an exception for what it says are “inferior officers” who can be appointed directly by the head of an agency. Smith, according to the Justice Department, fits that category and Garland was empowered to name him directly to the role of special counsel.
The appeal is the latest development in a prosecution that many legal experts have long considered a straightforward criminal case given the breadth of evidence, including surveillance video and an audio recording, that Justice Department investigators accumulated during the course of the investigation. But over the last year, the case was snarled by delays as Cannon, a Trump-appointed judge, entertained assorted Trump team motions before ultimately dismissing the prosecution and bringing the proceedings to at least a temporary halt.
It’s unclear how long it will take for the 11th U.S. Circuit Court of Appeals to decide the matter, but even if it overturns Cannon’s dismissal and revives the prosecution, there’s no chance of a trial before the November presidential election and Trump, if elected, could appoint an attorney general who would dismiss the case. A three-judge panel overturned Cannon in December 2022, ruling that she had overstepped her bounds during the documents investigation by appointing an independent arbiter to review the classified records seized by the FBI during a search months of his Mar-a-Lago estate.
The case includes dozens of felony charges that Trump illegally retained classified documents from his presidency at his estate in Palm Beach, Florida and obstructed the government’s efforts to get them back. Trump has pleaded not guilty.
Smith was appointed special counsel in November 2022 by Garland to investigate Trump’s handling of the documents as well as his efforts to undo the 2020 presidential election ahead of the Jan. 6, 2021, riot at the U.S. Capitol.
Both investigations resulted in criminal charges, though the election subversion prosecution also faces an uncertain future following a U.S. Supreme Court decision last month that conferred broad immunity on Trump and narrowed the scope of the case.
Defense lawyers in the classified documents case had argued that Smith’s appointment violated the Constitution’s Appointments Clause, a motion that prompted Cannon to hold a multi-day hearing in June.
The judge sided with the defense, saying that no specific statute permitted Garland’s appointment of Smith, who was unlawfully appointed because he had not been named to the position by the president or confirmed by the Senate.
But prosecutors said Monday that no fewer than four statutes give the attorney general the power to appoint a special counsel like Smith — an authority they said has been recognized for decades by judges across the country.
“From before the creation of the Department of Justice until the modern day, Attorneys General have repeatedly appointed special and independent counsels to handle federal investigations, including the prosecution of Jefferson Davis, alleged corruption in federal agencies (including the Department of Justice itself), Watergate, and beyond,” Smith’s team wrote.