Lawyer asks court to reopen Trump's secret documents case

WASHINGTON (AP) — Special Counsel Jack Smith on Monday asked a federal appeals court to Resumption of secret document trial against former President Donald Trumpand said a judge's decision to dismiss the charges was contrary to longstanding Justice Department practice and must be reversed.

Smith's team said U.S. District Judge Aileen Cannon made a serious error when she ruled that Smith was improperly appointed by Attorney General Merrick Garland. That position, prosecutors wrote in a brief filed in the Atlanta appeals court, contradicts rulings by judges across the country as well as “widespread and longstanding appointment practices in the Justice Department and throughout the government.”

If this proposal stands, they warned, it could “jeopardize the Justice Department's longstanding work and call into question hundreds of appointments across the executive branch.”

“The Attorney General validly appointed the Special Counsel, and he is also adequately funded,” prosecutors wrote. “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 long history of the Attorney General's appointment of Special Counsel.”

The appeal is the latest development in what many legal experts have long considered a straightforward criminal case, given the wealth of evidence, including surveillance video and an audio recording of Trump's own words, that Justice Department investigators had gathered during the course of the investigation. But last year, the case was hampered by delays While Cannon, a judge appointed by Trump, was reviewing various motions from Trump's team, he eventually dismissed the charges in a surprise decision, bringing the proceedings to a halt, at least temporarily.

It's unclear how long it will take for the 11th U.S. Circuit Court of Appeals to rule on the case, but even if it overturns Cannon's dismissal and reinstates the charges, there's no chance of a trial before the November presidential election. Trump, if elected, could appoint an attorney general who would dismiss the case. It's also possible the appeal could go to the U.S. Supreme Court.

In a statement Monday, Trump campaign spokesman Steven Cheung said “not only should the dismissal of the Lawless indictment in Florida be affirmed, but also the dismissal of ALL witch hunts immediately.”

The case, one of four federal and state indictments against Trump, includes dozens of charges of serious crimes claims Trump illegally kept secret documents of his presidency at his Mar-a-Lago estate in Palm Beach, Florida, and obstructed government efforts to get them back. Trump has pleaded not guilty.

At issue is a provision of the Constitution known as the Appointments Clause, which requires presidential approval and Senate confirmation for certain public officers, including judges, ambassadors, and “all other officers of the United States.”

But the clause also provides an exception for “inferior officials” who can be appointed directly by the head of an agency. Smith falls into this category, according to the Justice Department, and Garland had the authority to appoint him directly as special counsel.

Smith was appointed special advisor in November 2022 by Garland to investigate Trump's handling of the documents as well as his efforts to overturn the 2020 presidential election before the January 6, 2021, insurrection at the U.S. Capitol. Both investigations resulted in criminal charges, although the election tampering charge also has an uncertain future following a decision by the US Supreme Court last month This granted Trump broad immunity and narrowed the scope of the case.

Defense attorneys in the secret documents case had argued that Smith’s appointment violated the Appointments Clause, a motion that prompted Cannon to hold a multi-day hearing in JuneThe judge sided with the defense, saying there was no specific law allowing Garland to appoint Smith, noting that Smith was neither selected by the president nor confirmed by the Senate.

But prosecutors said Monday that no fewer than four laws give the attorney general the power to appoint a special prosecutor like Smith – an authority they said has been recognized by judges across the country for decades.

“From before the Justice Department was created to the present day, attorneys general have repeatedly appointed special counsel and independent advisers to handle federal investigations, including the prosecution of Jefferson Davis, alleged corruption in federal agencies (including the Justice Department itself), Watergate, and others,” Smith's team wrote.

In recent years, under both Democratic and Republican administrations, the Justice Department has relied on special counsels appointed from outside the agency to conduct investigations in everything from Russian interference in Trump’s favor during the 2016 elections To President Joe Biden's handling of confidential documents.

Cannon's decision, prosecutors said, suggests that any special counsel brought in from outside the Justice Department was invalidly appointed and that “Congress has repeatedly overlooked the recurring pattern of errors.”

“But,” they added, “it also goes much further. If the Attorney General does not have the power to appoint subordinate officials, this conclusion would invalidate the appointment of any member of the Department exercising significant authority and holding permanent office, except for the few specifically named in the law.”

A three-member panel of judges of the same Court of Appeal Cannon's conviction was overturned in December 2022, and it was ruled that she had exceeded her authority in the document investigation by appointing an independent arbitrator to review classified documents seized by the FBI in connection with the Mar-a-Lago estate.