Special counsel urges appeals court to revive documents case against Trump

Washington — Special counsel Jack Smith urged an appeals court Monday to resurrect the classified documents case against former President Donald Trump, writing the lower court’s decision to toss the charges “deviated” from legal precedent and “took inadequate account” of history. 

Smith submitted to the federal appeals court in Atlanta an initial brief defending his appointment as lawful and arguing U.S. District Judge Aileen Cannon’s decision tossing out the charges against Trump and his co-defendants was wrong.

Cannon dismissed the indictment against Trump, aide Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira in July after finding that Smith’s appointment as special counsel violated the Constitution’s Appointments Clause.

Trump has until Sept. 26 to submit a response to the special counsel’s arguments.

In their filing, Smith and his team wrote that prior court decisions and history confirm the attorney general has the authority to appoint special counsels to carry out law-enforcement missions, as well as special counsel appointments by previous attorneys general and “Congress’s endorsement of that practice through appropriations and other legislation.”

“The attorney general validly appointed the special counsel, who is also properly funded,” prosecutors said. “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.”

They said Cannon’s “contrary” view that Smith was unlawfully appointed “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 that Cannon’s decision “lacks merit” and argued Congress had authorized the appointment of special counsels by the attorney general. Smith’s team pointed to a landmark Supreme Court ruling from 1974 – United States v. Nixon – as having established the “appointment authority” of the attorney general. 

“Nixon conclusively defeats the defendants’ challenge to the Special Counsel’s appointment, as every other court to have considered the issue has found,” the filing argued.