Special counsel Jack Smith urges appeals court to revive Trump classified documents case

Federal prosecutors asked an appeals court Monday to restore Donald Trump’s classified documents case, pushing back on the former president's claims that Jack Smith's appointment as special counsel violated the Constitution.

"The Attorney General validly appointed the Special Counsel, who is also properly funded," Assistant Special Counsel James Pearce, a member of Smith's team, wrote in a brief filed with the 11th U.S. Circuit Court of Appeals. "In ruling otherwise, the district court 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."

U.S. District Judge Aileen Cannon, a Trump appointee, last month granted Trump’s attorneys’ request to dismiss the indictment on the grounds that Smith's appointment as special counsel violated the Constitution's appointments and appropriations clauses.

It also notes that attorneys general have been appointing special counsels for more than 150 years, quoting from a 1998 law review article written by now-Justice Brett Kavanaugh that refers to the practice as a “deeply rooted tradition.”

The brief places a lot of emphasis on the Supreme Court’s 1974 ruling in United States v. Nixon, in which the court upheld the enforceability of a subpoena issued by the special prosecutor investigating the Watergate scandal.

The legality of a special counsel or prosecutor was not directly at question in Nixon, but the Supreme Court issued its ruling based on the presumption that such appointments were allowed.

Cannon’s order dismissing Trump’s classified documents case referred to that section of the Nixon decision as nonbinding, but Smith's team contended Monday that the decision was binding to lower courts.

"Apart from the district court below, every court to consider the question has concluded that the Supreme Court’s determination that those statutes authorized the Attorney General to appoint the Watergate Special Prosecutor was necessary to the decision that a justiciable controversy existed and therefore constitutes a holding that binds lower courts," Pearce wrote.

Attorney General Merrick Garland appointed Smith in 2022 to probe Trump’s handling of classified materials, as well as his efforts to subvert 2020 presidential election results in the lead-up to the Jan. 6, 2021, Capitol riot.

Pearce noted in Monday's filing what he characterized as the cascading impact Cannon’s dismissal would have on the federal government if her reasoning is upheld.

“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," Pearce wrote.

"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," Pearce added. "The implausibility of that outcome underscores why the district court’s novel conclusions lack merit.”

Steven Cheung, a Trump campaign spokesman, said in a statement Monday that Cannon's dismissal of the case should be upheld.

"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, using a term Trump and his allies have adopted to refer to the legal battles Trump faces.

Cheung also called the cases "political attacks" and characterized them as election interference as Trump seeks a second term as president.

Attorneys for Trump did not immediately respond to a request for comment on the filing.

Trump has pleaded not guilty to charges that he willfully retained national defense information after he left office and that he directed the deletion of security video at his Mar-a-Lago resort in Florida.

Trump and his attorneys have frequently sought to dismiss or delay any court proceedings in the indictments he faces until after the general election in November.

Trump asked a New York judge this month to further postpone the sentencing hearing in his hush money case until after Election Day. Trump was convicted of 34 felony counts of falsifying business records in connection with a payment to an adult film star in the weeks leading up to the 2016 presidential election.

The sentencing, now set for Sept. 18, was previously delayed from the original July 11 date after the Supreme Court's immunity ruling in Trump's federal election interference case, which is also being prosecuted by Smith's team. The appeals process in the federal election case has essentially ensured that the trial won't get underway before Election Day.

Trump's indictment in Georgia tied to efforts to overturn the 2020 election results there also won't go to trial before November. The case was paused so a state appeals court can hear arguments challenging a judge's refusal to disqualify Fulton County District Attorney Fani Willis as the prosecutor.