Donald Trump's secret documents case: Jack Smith calls on appeals court to overturn judge's dismissal

Special Counsel Jack Smith filed his argument Monday, asking the 11th Circuit Court of Appeals to overturn a federal judge's surprise dismissal of the case involving former President Donald Trump's secret documents.

U.S. District Judge Aileen Cannon last month dismissed charges against Trump accusing him of improperly retaining classified documents from his time in the White House and then attempting to obstruct government efforts to get those documents back. Trump has pleaded not guilty to all counts.

Cannon's ruling was based on the argument that Smith's prosecution of Trump was unlawful. In her view, Smith was improperly appointed as special counsel by Attorney General Merrick Garland because he was never confirmed to the position by the U.S. Senate.

Special counsels have typically previously served as U.S. attorneys, who are appointed by the president and confirmed by the Senate. Smith previously served as acting U.S. attorney for the Middle District of Tennessee and worked for the International Criminal Court in The Hague, prosecuting war crimes, when he was appointed by Garland in November 2022 to lead both the classified documents investigation and the federal election interference investigation.

Legal experts criticized Cannon's ruling, saying it contradicted decades of precedent set by other judges and appeals courts, which had already rejected similar challenges by special counsel or other independently appointed prosecutors in the wake of the Watergate scandal.

Cannon had previously been criticized in some quarters for her handling of the case and a series of unusual decisions that were seen as beneficial to Trump's strategy of delaying a trial beyond the 2024 election.

In her letter filed Monday, Smith said Cannon's decision “contradicts an otherwise unbroken line of decisions, including those of the Supreme Court, that the Attorney General has such authority, and it contradicts widespread and long-standing appointment practices in the Department of Justice and throughout the government.”

Smith called Cannon's ruling “presumptuous” and “nonsensical” in his brief, citing a quote from Supreme Court Justice Brett Kavanaugh describing his time under independent counsel Kenneth Starr and writing about the “deeply rooted tradition of appointing an outside prosecutor to lead certain federal investigations.”

Cannon's conviction had already been overturned twice by the 11th Circuit prior to Trump's indictment. The court had granted his attorney's request to appoint a special counsel to examine evidence seized by the FBI during its search of Trump's Mar-a-Lago estate in August 2022. The FBI had subsequently ordered a temporary halt to its investigation.