Special counsel appeals dismissal of Trump’s classified documents case

Special counsel Jack Smith wants an appeals court to put his classified documents case against former President Donald Trump back on track after a judge tossed it out.

In July, Judge Aileen Cannon dismissed the documents case after defense attorneys argued Smith’s appointment was unconstitutional because the U.S. Senate did not confirm him.

Smith’s team of prosecutors fought back in the appeal filed this week.

“The district court’s contrary view conflicts with an otherwise unbroken course of decisions, including by the Supreme Court, that the Attorney General has such authority, and it is at odds with widespread and longstanding appointment practices in the Department of Justice and across the government,” Smith wrote. “This Court should reverse.”

Smith said Cannon’s ruling was made in error.

“The Attorney General validly appointed the Special Counsel, who is also properly funded. In ruling otherwise, the district court deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the Special Counsel’s appointment, and took inadequate account of the longstanding history of Attorney General appointments of special counsels,” he wrote.

Smith also pointed to the long history of the use of special counsels, including the 1865 treason prosecution of Jefferson Davis (Davis was released after two years in prison without ever going to trial) and the prosecution of John Surratt for aiding and abetting the assassination of President Abraham Lincoln.

Before Cannon tossed the case, Trump had pleaded not guilty to 40 felony counts that allege he kept sensitive military documents, shared them with people who didn’t have security clearances, and tried to dodge the government’s attempts to get them back.

Trump has repeatedly said that the civil and criminal charges he has faced are politically motivated prosecutions designed to keep him from returning to the White House.

In dismissing the case, Cannon said that Smith’s appointment violated the Appointments Clause of the Constitution, in particular, because the Biden administration funded the prosecution without authorization from Congress, which retains the power of the purse. Cannon said that Smith was operating with the power usually reserved for an attorney general but that, unlike an attorney general, Smith was not given express permission by Congress to do so.