Special counsel Jack Smith on Monday began his bid to revive the classified documents case against former President Donald Trump after a federal judge dismissed the indictment last month, finding Smith’s appointment unlawful.
The deadline for Smith’s office to file its first brief to the U.S. Court of Appeals for the 11th Circuit was Tuesday, but Smith submitted his brief Monday afternoon. The filing marks his first push to explain to the panel why he believes District Judge Aileen Cannon was wrong to dismiss the case on the grounds that he was unlawfully appointed by Attorney General Merrick Garland.
“The district court’s contrary view 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 office wrote in a 60-page filing. “This Court should reverse.”
Cannon, a Trump appointee who has been overturned by the 11th Circuit on matters related to the former president before, tossed out the case accusing him of improperly storing classified documents at his Mar-a-Lago home in July, just weeks after Supreme Court Justice Clarence Thomas questioned Smith’s authority to preside over the case in Trump v. United States.
“The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,” Cannon wrote in her decision, which cited a portion of Thomas’s concurring opinion, which is nonbinding and was not joined by any of the eight other justices on the high court.
The judge noted that if Garland wanted Smith to remain on the case, he would need the approval of the Senate by a majority vote to be considered a constitutional appointee under the Appointments Clause.
Smith’s response was expected to be a meticulous legal breakdown of why the 11th Circuit should overturn Cannon and revive the case, which would cease to exist had the federal government not chosen to appeal her decision. Prior to Cannon’s ruling, Smith called the Trump-backed challenge to his appointment “meritless,” noting that “every court that has considered them has rejected them — including authoritative decisions by the Supreme Court.”
In his brief on Monday to the 11th Circuit, Smith dug deep into precedent and history to defend Garland’s appointment of him without the advice and consent of the Senate.
“Many other officials in the Department, outside of Main Justice, are likewise identified by statute as subject to presidential appointment with Senate advice and consent, including the U.S. Attorneys, U.S. Marshals, and the Directors of the DOJ law enforcement agencies,” according to a footnote on page 38 of Smith’s brief.
Additionally, Smith’s office reasoned that there are at least four statutes that give the Justice Department the authority to appoint special counsels such as Smith.
“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 added.
Garland previously reasoned that Smith’s appointment in November 2022 was necessary given that Trump was again running for president and the cases were so political. Special counsels typically have more independence, and Smith’s position was intended to maintain a degree of separation from the attorney general, who was nominated by President Joe Biden and confirmed by the Senate.
Although Cannon’s position has not been embraced by the jurist handling the other federal Trump indictment, District Judge Tanya Chutkan, some legal experts have suggested that if Cannon’s decision is upheld, it could raise broader questions about the legality of senior officials serving as acting prosecutors.
Smith’s office noted in the filing that if Cannon’s order were allowed to stand, it could “jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch.”
However, Cannon’s decision only narrowly applies to the South Florida judicial district where she serves, and a small portion of her ruling specified that the decision would not be applicable to acting officials.
Smith, who was once bullish about bringing the case to a trial before the election, is now taking a more calculated approach in both the documents case and the separate 2020 election subversion case in Washington, D.C.
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It is unlikely for the case to be back on track before the end of the year, let alone by the Nov. 5 Election Day. If Trump is reelected, the future of the case would become even more uncertain, given the likelihood that he would request the indictment’s dismissal.
The case includes dozens of felony charges accusing Trump of illegally retaining classified documents from his presidency at his Florida estate and that he obstructed the government’s efforts to retrieve them. Trump pleaded not guilty to the charges.
