Support truly
independent journalism
Special counsel Jack Smith is urging a federal appeals court to revive the classified documents case against Donald Trump, after a Trump-appointed judge dismissed the charges in a shock ruling that argued Smith’s office was unlawfully created.
Monday’s filing with a Florida appeals court cites several longstanding precedents and Supreme Court rulings that appear to contradict District Judge Aileen Cannon’s conclusion, which Smith’s team calls “nonsensical.”
Prosecutors also warned that Judge Cannon’s rationale would jeopardize “hundreds” of similarly appointed offices.
“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 team argued. “This Court should reverse.”
Last month, Cannon argued that the “prosecution of this action breaches two structural cornerstones of our constitutional scheme — the role of Congress in the appointment of constitutional officers and the role of Congress in authorizing expenditures by law.”
Legal experts and prosecutors considered the theory far-fetched, and it wasn’t adopted in court until right-wing legal groups began promoting it. Trump’s lawyers did not make the same argument to try to dismiss the federal election interference case, despite the fact that Smith is also prosecuting that case exactly the same way.
Cannon’s ruling “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,” according to Smith’s team.
Prosecutors did not ask the court to recuse Cannon from the case — at least not yet.
The former president faced 40 separate charges stemming from allegations that he withheld hundreds of classified documents after leaving the White House for his private Mar-a-Lago residence in Florida, then conspired to obstruct government attempts to retrieve them.
The 93-page order from Cannon — who was appointed to the bench by then-President Trump in 2020 — did not speak to the facts of the case or any of the evidence against Trump.
In July, Supreme Court Justice Clarence Thomas filed a wholly separate opinion in an unrelated landmark ruling on presidential “immunity” to cast doubt on the constitutionality of the special counsel’s office, which appeared to give Trump and Judge Cannon a legal pathway to dismissing the Florida case.
Days later, Trump’s attorneys argued that Thomas’s opinion “adds force” to Trump’s claim that Smith’s appointment and funding raise “grave separation-of-powers concerns.”
Cannon’s decision to dismiss the case referenced Thomas’s opinion three times.
The Mar-a-Lago case marked the first federal indictment of a former president, and stemmed from law enforcement’s recovery of more than 13,000 documents — including 300 marked classified — at his Florida compound in 2022, after the National Archives and Records Administration had spent more than a year trying to get them back.
Following Trump’s announcement of his 2024 presidential campaign in 2022, Attorney General Merrick Garland announced Smith’s appointment as an independent prosecutor, in the hopes of insulating the agency and administration against the perception of political interference.
Still, Trump and his allies have baselessly accused President Joe Biden of conspiring against his Republican rival and leading politically motivated investigations in an attempt to derail his path to the White House.
