Special counsel Jack Smith is arguing to revive his office’s classified documents case against Donald Trump with a vigorous defence of its authority in the first formal filing since Judge Aileen Cannon dismissed the criminal case last month.
In a brief filed with the 11th US Circuit Court of Appeals in Atlanta on Monday, Smith argues that Cannon’s decision to end the Trump case because the prosecutors’ office lacked constitutional authority was “novel” and “lack[ed] merit.”
Cannon had ruled the Justice Department didn’t have the ability to appoint or fund special counsels like Smith.
Smith’s team also cast the decision from Cannon as not just affecting other special counsel prosecutions – of which there are several ongoing in other courts, against Trump and Hunter Biden, among others – but also as potentially affecting the power of leaders across the federal government.
“If the Attorney General lacks the power to appoint inferior officers, that conclusion would invalidate the appointment of every member of the Department who exercises significant authority and occupies a continuing office, other than the few that are specifically identified by statute,” Smith’s office wrote in the 81-page filing.
“The district court’s rationale would likewise raise questions about hundreds of appointments throughout the Executive Branch, including in the Departments of Defense, State, Treasury, and Labor,” the prosecutors added.
Trump was charged last summer with several counts of mishandling sensitive government documents taken from his White House at the end of the presidency, and the GOP 2024 nominee also faces several obstruction charges for alleged efforts to hinder the federal probe into the materials. The former president and his two co-defendants – Trump employees also accused of obstruction – have pleaded not guilty.
The 11th Circuit is reviewing the determinations by Cannon that Smith’s appointment as special counsel was unconstitutional and that his office was being unlawfully funded.
Cannon dismissed the charges on that rationale after months of wrangling over other pretrial issues in the classified documents case, and she had not resolved other major legal questions about the prosecution before she tossed it.
Other courts have upheld the use of special counsels. But Cannon said that Congress had not given the Justice Department the authority to make such an appointment, while also concluding that the funding for Smith’s office had not been properly appropriated by lawmakers.
Her July 15 ruling leaned on a concurrence written by Justice Clarence Thomas earlier that month in the Supreme Court’s presidential immunity case. That case dealt with the separate election interference prosecution Smith brought against Trump in DC, with the high court’s conservative majority ruling Trump has presidential immunity that shields him from at least some parts of the case. But Thomas wrote separately to also question the constitutionality of Smith’s appointment.
In a statement, Trump campaign spokesman Steven Cheung said all of the charges against Trump in various states should be dismissed.
“As we move forward in Uniting our Nation, not only should the dismissal of the Lawless Indictment in Florida be affirmed, but be immediately joined by a dismissal of ALL the Witch Hunts,” Cheung said.
Attorneys for the other two defendants in the classified documents case did not immediately respond to a request for comment.
Appeals court has a conservative bent
The Atlanta-based appeals court that will decide whether the case can be reinstated has a conservative lean. But in a previous dispute – a lawsuit brought by Trump in 2022 challenging the FBI’s search of his Mar-a-Lago resort – the 11th Circuit knocked Cannon for how she approached the federal documents investigation at the pre-indictment phase.
In that case, the 11th Circuit reversed multiple Cannon rulings that had constrained the probe into the classified documents so that an outside lawyer could review the seized materials for privilege concerns.
“The law is clear,” Circuit Chief Judge Bill Pryor wrote in a December 2022 ruling in that dispute. “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.”
It is not yet clear which 11th Circuit judges will be on the three-judge panel that will review Cannon’s dismissal of the charges.
Months ahead
Even if the federal appeals panel moves relatively quickly to decide the matter, it is likely to take months or even years to resolve the issues in the classified documents case.
Trump and his co-defendants currently have a deadline to respond to the appeals court in writing with their own arguments in a month, with the DOJ getting another round to argue on paper after that before any oral arguments might take place.
It’s possible and even likely the questions over the special counsel’s authority then could land before the Supreme Court, as other courts have decided the legal questions differently than Cannon.
While Monday’s filing is only about Trump’s Florida-based case, Hunter Biden and other criminal defendants facing ongoing special counsel prosecutions have raised similar challenges to them in other courts. Trump hasn’t challenged Smith’s authority in the criminal case he faces in Washington, DC, related to the 2020 election, because courts there have already upheld the use of special counsel prosecutions.
The DOJ’s brief on Monday appears to indicate that prosecutors are already looking toward a possible round of defending the Trump case and their office before the Supreme Court. They reach back decades and cite, for instance, a 1998 writing by now-Justice Brett Kavanaugh, who nodded to a “deeply rooted tradition” of independent prosecutors in American history.
The Justice Department describes how the federal court system upheld the well-known Watergate investigation of Richard Nixon. The brief on Monday also pointed out how attorneys general used outside prosecutors after the Civil War for cases including the treason proceeding of Jefferson Davis and another case against a man for assisting in the assassination of Abraham Lincoln.