Jack Smith, the special counsel appointed by the Justice Department to investigate former President Donald Trump’s mishandling of classified documents, wants to revive the case.
He formally filed Monday to appeal a district court judge’s dismissal of the case in July.
In a fiery 81-page brief filed on Monday, Smith argued that District Court Judge Aileen Cannon’s decision to dismiss the case “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.”
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Prosecutors asked the 11th Circuit Court of Appeals to reverse the decision and allow the case to continue.
Cannon, a district judge in Florida appointed to the bench by Trump in 2020, dismissed the case on July 15. Earlier the same month, the Supreme Court ruled that former presidents have some immunity to prosecution for “official acts” taken while in office.
However, Cannon’s ruling did not cite the Supreme Court’s landmark decision—instead, it argued that the Justice Department had erred in appointing Smith in the first place. The controversial decision came after Cannon allowed the defendant to continuously delay pretrial proceedings for months after the former president was indicted in June 2023.
Cannon’s ruling was likely based on Justice Clarence Thomas’s concurring opinion to the immunity decision, where the conservative justice argued “If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.”
In the filing on Monday, the Justice Department cited “precedent and history” as evidence to overturn the decision. “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,” prosecutors wrote.
Congress granted itself the power to appoint special counsels after it passed the Ethics in Government Act in the wake of the Watergate scandal. However, Smith’s filing argued that this act in no way took away that same power from the attorney general, and cited several examples of the practice since then—including the special counsel appointed to investigate Jimmy Carter’s peanut warehouse, Lawrence Walsh’s appointment to investigate the Iran-Contra scandal, and Robert Fiske’s appointment to investigate the Whitewater scandal during the Clinton administration.
Smith’s filing also took aim at the claim that a “private citizen” could not prosecute a president, noting that Smith was a “sworn officer” of the Justice Department.
They also argued that Cannon’s decision could imperil other federal agencies that rely on the executive branch’s authority to appoint “inferior officers.”
“The district court’s rationale would likewise raise questions about hundreds of appointments throughout the Executive Branch, including in the Departments of Defense, State, Treasury, and Labor, which all rely on statutes resembling Sections 509 and 510 to support their Secretary’s authority to appoint inferior officers.”
