Special Counsel Jack Smith appeals ruling that dismissed Trump's secret documents case

MIAMI – Special Counsel Jack Smith says Florida District Judge Aileen Cannon acted wrongly when she dismissed the lawsuit against former President Donald Trump last month over the misuse of classified and top-secret documents.

In a brief filed with the 11th Circuit Court of Appeals, Smith argues that Judge Cannon also erred when he ruled that the process for appointing the special counsel was unconstitutional.

Smith is appealing Cannon's ruling, asking the 11th Circuit to vacate its order dismissing the case and send it back “for further proceedings.” In his brief, the special counsel does not ask the court to remove the Trump-appointed judge from the case.

Even before her dismissal, Cannon was criticized by legal experts for delays and rulings that favored Trump. If the appeals court overturns her ruling, many legal experts say it could also ask Cannon to recuse herself from the case.

In her ruling last month, Judge Cannon said Attorney General Merrick Garland exceeded his constitutional authority when he appointed a prosecutor without congressional approval. “The special counsel's position effectively usurps this important legislative authority,” she wrote, “and threatens the structural freedom inherent in the separation of powers.”

Cannon's opinion contradicts decades of decisions by other federal courts that upheld the constitutionality of the office of special counsel.

In her analysis, Cannon examined a key Watergate-era Supreme Court opinion from 1974. Cannon concluded that the judge's “casual remarks” did not set “binding precedent for future cases.” But in his brief, Smith says, “The district court erred.” In that case, Smith said, the Supreme Court ruled “that the Attorney General has statutory authority… to appoint a special prosecutor comparable to the special counsel.”

Smith lists four laws passed by Congress authorizing the appointment and funding of the Office of Special Counsel.

“Precedent and history confirm this authority,” Smith writes, “as does the long tradition of attorneys general appointing special prosecutors and congressional approval of the practice.” Special prosecutors have been appointed by attorneys general for more than 150 years, Smith points out, and were used after the Civil War to indict Jefferson Davis for treason and as a co-conspirator in the assassination of President Lincoln.

Trump's lawyers have 30 days to file their response to Smith's brief. Smith is asking the 11th Circuit to schedule oral arguments because he believes they “would aid the Court's decision-making process in this case of significant public importance.”

Copyright: NPR