The special counsel defended the legality of his own appointment after Judge Aileen Cannon declared the appointment unconstitutional.
By Josh Gerstein and Kyle Cheney
Special counsel Jack Smith urged a federal appeals court Monday to reinstate the criminal case charging former President Donald Trump with hoarding classified documents and obstructing the federal investigation into their presence at his Florida estate.
Smith argued that U.S. District Judge Aileen Cannon made a series of errors when she dismissed the case in July after agreeing with arguments from Trump’s lawyers that Attorney General Merrick Garland’s appointment of the special counsel was unconstitutional.
The Trump-appointed judge’s surprise ruling short-circuited Smith’s case on the day the former president arrived in Milwaukee for the Republican National Convention and just days after he survived a would-be assassin’s bullet. It was the latest in a string of legal victories that have largely sidelined three of the four criminal cases Trump has faced — including two from Smith — during the 2024 campaign.
Smith’s 81-page filing largely retraces arguments his prosecutors made to Cannon, arguing that she seized on unimportant details to differentiate Smith’s from decisions spanning decades that have upheld or supported the attorney general’s wide latitude to appoint special counsels. They include a Supreme Court’s ruling backing a subpoena issued by the special prosecutor that investigated Richard Nixon’s Watergate scandal.
“Congress has granted the Attorney General not only the power to appoint special counsels, but discretion to determine how much independence to give them,” Smith and his colleagues wrote in a brief that traces the history of such appointments back to the 1805s.
Despite recent signs of tension between Smith and Cannon, his brief used relatively muted language to criticize the judge’s reasoning.
“The district court attached undue weight to several superficial variations in historical practice that shed no light on the question at hand,” Smith wrote.
The prosecutor also made no request that the appeals court order that the case be assigned to a different trial court judge, something many Trump critics have urged due to a series of unusual rulings and delays from Cannon that favored the former president.
In an interview last month, Garland himself struck a somewhat more aggressive tone, suggesting that Cannon’s grounds for dismissing the case were out of the legal mainstream.
“For more than 20 years, I was a federal judge. Do I look like somebody who would make that basic mistake about the law? I don’t think so,” Garland told NBC News. “Our position is that it’s constitutional and valid. That’s why we appealed.”
“I will say that this was the same process of appointing special counsel as was followed in the previous administration,” the attorney general added. “Until now, every single court including the Supreme Court that has considered the legality of a special counsel appointment has upheld it.”
Smith filed his brief a day before it was due, effectively moving up Trump’s deadline to respond by a day. However, the special prosecutor has not asked for expedited treatment of the appeal, meaning it will likely stretch for months before it is resolved by a three-judge panel of the Atlanta-based appeals court. After that, further appeals to the full bench of the 11th Circuit or the Supreme Court are possible, if not likely.
The timeline all but ensures that the classified documents case will remain in limbo through the final weeks of the 2024 campaign. Smith has separately brought criminal charges against Trump in Washington, D.C., over his bid to subvert the 2020 election — and the future of that case, too, is uncertain after a Supreme Court ruling on presidential immunity. If Trump wins the election, he’s expected to shut down both cases.
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