Special investigator asks appeals court to reopen Trump document trial

Washington — Special Counsel Jack Smith on Monday asked an appeals court to reopen the case over classified documents against former President Donald Trump, writing that the lower court's decision to drop the charges “departed from precedent” and “failed to adequately consider history.”

Smith initially filed a brief in the federal appeals court in Atlanta defending his lawful appointment and arguing that U.S. District Judge Aileen Cannon's decision to dismiss charges against Trump and his co-defendants was wrong.

cannon the charges dismissed against Trump, his adviser Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira in July after finding that Smith's appointment as special counsel violated the Appointments Clause of the Constitution.

Trump has until September 26 to submit a response to the special counsel's arguments.

In their motion, Smith and his team wrote that previous court decisions and history confirm that the Attorney General has the authority to appoint special counsels to conduct law enforcement missions. This also confirms the appointment of special counsels by previous Attorneys General and “congressional approval of this practice through budget appropriations and other legislation.”

“The Attorney General validly appointed the Special Counsel, and he is also adequately funded,” prosecutors said. “In ruling to the contrary, the District Court departed from the binding jurisprudence of the Supreme Court, misinterpreted the statutes authorizing the appointment of the Special Counsel, and failed to adequately consider the Attorney General's long history of appointing Special Counsels.”

They said Cannon's “contradictory” view that Smith was improperly appointed “runs counter to otherwise consistent case law, including that of the Supreme Court, that the Attorney General has such authority, and runs counter to widespread and long-standing appointment practices in the Justice Department and throughout the government.”

Prosecutors wrote that Cannon's decision was “meritless,” arguing that Congress authorized the attorney general's appointment of special counsels. Smith's team pointed to a landmark 1974 Supreme Court ruling – United States v. Nixon – that established the attorney general's “appointment authority.”

In that case, the Supreme Court ordered then-President Richard Nixon to comply with a special prosecutor's subpoena to produce tape recordings and documents related to the Watergate scandal.

“Nixon definitively rejects the defendants' challenge to the appointment of the special counsel, as every other court that has considered the matter has found,” Smith argued in his complaint.

The document case

Blacksmith accused the former president with 40 charges arising from his alleged unlawful handling of documents with classified markings after he left office in January 2021. Federal investigators around 300 sensitive data records restored from Mar-a-Lago, Trump's South Florida estate, in 2022, including more than 100 seized when the FBI conducted a court-ordered search of the property in August of this year.

32 of these documents are the basis for the charge of unlawful intentional retention of national defense information. Trump, Nauta and De Oliveira are also accused of obstructing the Justice Department's investigation. The three pleaded not guilty.

Trump pushed for charges to be brought rejected for numerous reasonsincluding the allegation that Smith was improperly appointed and his office was funded in violation of the Appropriations Clause. Cannon heard arguments on his motion in June, taking the unusual step of allowing outside lawyers to participate in the proceedings.

In mid-July, the federal judge appointed by Trump granted the former president's request to drop the charges and ordered the case to be dismissed.

“The bottom line is this: The Appointments Clause is a crucial constitutional limitation arising from the separation of powers, and it gives Congress a deliberate role in deciding the appropriateness of delegating appointment powers to subordinate officials,” Cannon wrote in her 93-page decision. “The position of special counsel effectively usurps this important legislative authority by vesting it in a department head, and in doing so threatens the structural freedom inherent in the separation of powers.”

Smith immediately announced that he would appeal Cannon's decision to the U.S. Court of Appeals for the 11th Circuit. The dispute over the constitutionality of his appointment is likely to end up before the Supreme Court.

The special investigator’s argument

In their complaint, prosecutors defended Smith's appointment by citing historical and legal precedent and citing several laws that they said Cannon had misinterpreted.

“Congress' annual appropriations to fund these offices and officials confirm – and even ratify, should further ratification be required – the Attorney General's appointment authority,” the special counsel wrote, adding that the appointments he sponsored “are not unique to the Department of Justice.”

The document warned that Cannon's ruling would have far-reaching consequences if it stood, as it “needlessly casts doubt” on past appointments of Justice Department and executive branch officials. Adopting her legal opinion, Smith wrote, risks “being invalidated.”[ing] the appointment of any member of the Department who exercises significant authority.”

“This list includes at least high-level ministerial positions such as Deputy Attorney General and Assistant Deputy Attorney General,” Smith and his team warned.

The special counsel said the lower court's reasoning would raise questions beyond the Justice Department about “hundreds” of appointments in the executive branch, including at the Defense Department, State Department, Treasury Department and Labor Department.

“The improbability of this outcome underscores why the district court's novel conclusions are without merit,” Smith's office wrote.

Cannon's ruling came weeks after Justice Clarence Thomas issued a concurring opinion in another case involving Trump, questioning whether Smith's appointment was “legally justified.” The conservative judge, who was not joined by any other member of the court, wrote that further review of the appointment should take place before the case is heard.

Thomas wrote the opinion in a case arising from Smith's other prosecution of the former president for his conduct after the 2020 presidential election. Trump invoked presidential immunity and the case went to the Supreme Court.

“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas wrote, specifically addressing an issue not raised in the case. “The lower courts should therefore answer these essential questions about the appointment of the special counsel before proceeding.”

Smith was appointed special advisor in 2022 to oversee the two federal investigations into Trump – the probe into his handling of sensitive government records and an investigation into his alleged efforts to undermine the president's transfer of power after the 2020 election.

His selection was not unusual, as attorneys general in both Republican and Democratic administrations have appointed special counsels to lead sensitive investigations in recent years. Several federal judges have dismissed constitutional challenges to appointments similar to Trump's. For example, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the appointment of Robert Mueller as special counsel in 2019.

The 11th Circuit has already reviewed one of Cannon's rulings, which arose from Trump's handling of classified documents. In December 2022, a three-judge panel will unanimously repealed Their decision to appoint an independent arbitrator to review the materials the FBI seized during its raid at Mar-a-Lago.

The decision by the three judges, two of whom were appointed by Trump, ended the so-called special counsel review and allowed the Justice Department to use the documents seized at Mar-a-Lago in its investigation.

The special counsel has suffered several setbacks in his proceedings against Trump, the Republican presidential candidate. In the indictment, which stems from the former president's actions in connection with the 2020 election, the proceedings delayed by months Trump argued that his presidential immunity protected him from federal prosecution.

The Supreme Court reigned in July that a former president enjoys immunity from prosecution for official acts performed while in the White House. The conservative majority found that Trump could not be charged for some of the acts alleged in the 45-page indictment – his conversations with Justice Department officials about overturning the election results – but left it to the U.S. district judge in charge of the case to analyze the remaining allegations to determine whether they concern acts for which Trump enjoys immunity from prosecution.

Prosecutors from Smith's team and Trump's lawyers have until Friday to propose a timetable for moving forward in the case. Both sides will then appear for a hearing on September 5 before U.S. District Judge Tanya Chutkan, who is handling the case.

Cannon's dismissal of the documents case, along with the ongoing appeals and delay in the 2020 election case, mean Trump will not face trial in either case before the November 5 election.