Special counsel Jack Smith filed his argument Monday urging the 11th Circuit Court of Appeals to reverse a federal judge’s surprise dismissal of former President Donald Trump’s classified documents case.
U.S. District Judge Aileen Cannon last month threw out the case against Trump that charged him with unlawfully retaining classified documents taken from his time in the White House and then seeking to obstruct the government’s efforts to retrieve them. Trump has pleaded not guilty to all charges.
Cannon’s ruling centered around arguments that Smith’s prosecution of Trump was illegitimate because, in her determination, Smith was unlawfully appointed by Attorney General Merrick Garland to his position as special counsel because he was never confirmed to his post by the U.S. Senate.
Special counsels have typically served previously as U.S. attorneys, who are appointed by the president and confirmed by the Senate. Smith was previously the acting U.S. attorney for the Middle District of Tennessee and was working for the International Criminal Court at the Hague prosecuting war crimes when he was tapped by Garland in November 2022 to lead both the classified documents probe and the federal election interference investigation.
Legal experts criticized Cannon’s ruling as running counter to decades of legal precedent set by other judges and appeals courts, which had rejected similar challenges to special counsels or other independently appointed prosecutors dating back to the Watergate scandal.
Cannon had already previously earned criticism in some quarters over her handling of the case as well as a number of unusual decisions seen as beneficial to Trump’s strategy of delaying any trial past the 2024 election.
In their filing Monday, Smith said Cannon’s ruling “conflicts with an otherwise unbroken course of decisions, including by the Supreme Court, that the Attorney General has such authority, and it is at odds with widespread and longstanding appointment practices in the Department of Justice and across the government.”
Smith’s filing, which characterized Cannon’s ruling as “strained” and “nonsensical,” cited a quote from Supreme Court Justice Brett Kavanaugh in which Kavanaugh, recounting his time serving under independent counsel Kenneth Starr, writes about the “deeply rooted tradition of appointing an outside prosecutor to run particular federal investigations.”
Cannon was previously overturned twice by the 11th Circuit prior to Trump’s indictment after she granted his attorney’s request to appoint a special master to review evidence the FBI had seized in its August 2022 search of Trump’s Mar-a-Lago estate, then ordered the FBI to temporarily pause its investigation.
