Republican presidential nominee, former U.S. President Donald Trump during the National Guard Association of the United Statesโ 146th General Conference & Exhibition at Huntington Place Convention Center on August 26, 2024 in Detroit, Michigan. Photo: Getty Images via AFP
Special counsel Jack Smith urged a federal appeals court on Monday (August 26, 2024) to reinstate the classified documents case against former President Donald Trump, saying a judgeโs decision that dismissed the prosecution was at odds with longstanding Justice Department practice and must be reversed.
Mr. Smithโs team said U.S. District Judge Aileen Cannon made a grievous mistake by ruling that Mr. 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 โwidespread and longstanding appointment practices in the Department of Justice and across the governmentโ.
If allowed to stand, they warned, it could โjeopardise the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branchโ.
โThe Attorney General validly appointed the Special Counsel, who is also properly funded,โ prosecutors wrote. โIn ruling otherwise, the district court deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the Special Counselโs appointment, and took inadequate account of the longstanding history of Attorney General appointments of Special Counsels.โ
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 of Mr. Trumpโs own words, that Justice Department investigators accumulated during the course of the investigation. But over the last year, the case has been snarled by delays as Ms. Cannon, a Trump-appointed judge, entertained assorted Trump team motions before ultimately dismissing the prosecution in a stunning decision that brought the proceedings to at least a temporary halt.
Itโs unclear how long it will take for the 11th U.S. Circuit Court of Appeals to decide the matter, but even if it overturns Ms. Cannonโs dismissal and revives the prosecution, thereโs no chance of a trial before the November presidential election. Mr. Trump, if elected, could appoint an Attorney General who would dismiss the case.
In a statement on Monday, Trump campaign spokesman Steven Cheung said โnot only should the dismissal of the Lawless Indictment in Florida be affirmed, but be immediately joined by a dismissal of ALL the Witch Huntsโ.
The case, one of four federal and state prosecutions brought against Mr. Trump, includes dozens of felony charges that Mr. Trump illegally retained classified documents from his presidency at his Mar-a-Lago estate in Palm Beach, Florida and obstructed the governmentโs efforts to get them back. Mr. Trump has pleaded not guilty.
At issue in the appeal is a provision of the Constitution known as the Appointments Clause, which requires presidential approval and Senate confirmation for certain public figures, including Judges, Ambassadors and โall other officers of the United Statesโ.
But the clause also includes an exception for what it says are โinferior officersโ who can be appointed directly by the head of an agency. Mr. Smith, according to the Justice Department, fits that category and Mr. Garland was empowered to name him directly to the role of Special Counsel.
Mr. Smith was appointed Special Counsel in November 2022 by Mr. Garland to investigate Mr. Trumpโs 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 Mr. Trump and narrowed the scope of the case.
Defence lawyers in the classified documents case had argued that Mr. Smithโs appointment violated the Appointments Clause, a motion that prompted Ms. Cannon to hold a multi-day hearing in June. The judge sided with the defence, saying that no specific statute permitted Mr. Garlandโs appointment of Mr. Smith and that Mr. Smith was unlawfully appointed because he had not been named by the President or confirmed by the Senate.
But prosecutors said on Monday that no fewer than four statutes give the Attorney General the power to appoint a Special Counsel like Mr. Smith โ an authority they said has been recognized for decades by judges across the country.
โFrom 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,โ Mr. Smithโs team wrote.
In recent years, the Justice Department, during both Democratic and Republican administrations, has relied on Special Counsels appointed from outside the agency to conduct investigations into everything from Russian interference on Mr. Trumpโs behalf during the 2016 election to President Joe Bidenโs handling of classified documents after his tenure as Vice-President ended.
Ms. Cannonโs ruling, prosecutors said, suggests that every Special Counsel whoโs been brought in from outside the Justice Department was invalidly appointed and that โCongress repeatedly overlooked the persistent pattern of errorsโ.
โBut,โ they added, โit also goes much further. 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 in statute.โ
A three-judge panel of the same appeals court 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 the Mar-a-Lago estate.
