Justice Department wants to reopen case on Trump documents and defends role of special investigator

CNN
—

Special Counsel Jack Smith is arguing for a reopening of his office's case regarding the classified documents against Donald Trump, vigorously defending its validity in the first formal motion since Judge Aileen Cannon dismissed the criminal case last month.

In a brief filed Monday with the 11th U.S. Circuit Court of Appeals in Atlanta, Smith argues that Cannon’s decision to drop the Trump case because prosecutors lacked constitutional authority was “novel” and “not[ed] merit.”

Cannon had ruled that the Justice Department did not have the authority to appoint or fund special prosecutors like Smith.

Smith's team also warned that Cannon's decision would not only impact other special counsel prosecutions – several of which are currently underway in other courts, including against Trump and Hunter Biden – but also that it would potentially impact the power of leaders across the federal government.

“If the Attorney General does not have the authority to appoint subordinate officials, this conclusion would invalidate the appointment of any member of the Department who exercises significant authority and holds a permanent office, except for the few specifically designated by law,” Smith's office wrote in the 81-page document.

“The district court's reasoning would also raise questions about hundreds of appointments across the executive branch, including the Departments of Defense, State, Treasury and Labor,” prosecutors added.

Trump was charged last summer with multiple counts of misappropriation of confidential government documents stolen from his White House at the end of his presidency. The 2024 Republican presidential candidate also faces multiple counts of obstruction of justice for allegedly attempting to obstruct the federal investigation into the records. The former president and his two co-defendants – Trump associates who also face obstruction charges – have pleaded not guilty.

The 11th Circuit is reviewing Cannon's findings that Smith's appointment as special counsel was unconstitutional and that his office was improperly funded.

Cannon dismissed the charges on this basis after months of pretrial disputes over other issues in the case involving the classified documents. She also failed to resolve other important legal issues surrounding the charges before dropping them.

Other courts have upheld the use of special counsels, but Cannon said Congress did not give the Justice Department the authority to make such appointments. He also concluded that the funds for Smith's office were improperly appropriated by the legislature.

Her July 15 ruling relied on a concurrence written earlier that month by Justice Clarence Thomas in the presidential immunity case before the Supreme Court, which involved the separate election interference case Smith had brought against Trump in Washington. The Supreme Court's conservative majority had ruled that Trump enjoys presidential immunity, shielding him from at least some parts of the case. But Thomas also questioned the constitutionality of Smith's appointment in a separate brief.

In a statement, Trump campaign spokesman Steven Cheung said all charges against Trump in various states should be dropped.

“As we move forward in unifying our nation, not only should the dismissal of the Florida law violation charges be affirmed, but so should the dismissal of ALL witch hunts immediately,” Cheung said.

Lawyers for the other two defendants in the case involving the secret documents did not immediately respond to a request for comment.

The Atlanta-based appeals court that will decide whether to retry the case leans conservative. But in an earlier dispute – a lawsuit Trump filed in 2022 challenging the FBI's search of his Mar-a-Lago resort – the 11th Circuit criticized Cannon for her handling of the pre-impeachment phase of the federal documents review.

In this case the 11.^th The Circuit Court overturned several Cannon rulings that had limited the examination of the confidential documents, allowing outside counsel to review the seized materials for confidentiality concerns.

“The law is clear,” wrote Circuit Court Chief Judge Bill Pryor in a December 2022 ruling in the dispute. “We cannot make a rule that allows anyone against whom a search warrant has been issued to block government investigations after the warrant has been executed. Nor can we make a rule that allows only former presidents to do so.”

It is not yet clear which 11^th District judges will serve on the three-judge panel that will consider Cannon's dismissal of the charges.

Even if the Federal Appeals Panel makes a decision relatively quickly, it will likely take months or even years for the issues in the case surrounding the secret documents to be resolved.

Trump and his co-defendants currently have a month to present their own written arguments to the appeals court. After that, the Justice Department will get another round to present its arguments in writing before oral arguments can be heard.

It is possible and even likely that questions about the special counsel's authority will end up before the Supreme Court, since other courts have decided the legal issues differently than Cannon.

While Monday's filing concerns only Trump's Florida-based case, Hunter Biden and other defendants facing ongoing special counsel proceedings have raised similar objections to it in other courts. Trump has not challenged Smith's authority in the criminal case he faces in Washington, DC, related to the 2020 election because courts there have already upheld the use of special counsel proceedings.

Monday's Justice Department brief appears to indicate that prosecutors are already considering a possible round of defense of the Trump case and their office before the Supreme Court, reaching back decades to cite, for example, a 1998 letter from now-Justice Brett Kavanaugh in which he referred to a “deeply rooted tradition” of independent prosecutors in American history.

The Justice Department describes how the federal court upheld the well-known Watergate investigations into Richard Nixon. The report, released Monday, also noted that after the Civil War, state attorneys general used outside prosecutors for cases such as the treason trial of Jefferson Davis and another trial of a man for aiding and abetting the assassination of Abraham Lincoln.

This story has been updated with additional details.

CNN's Hannah Rabinowitz contributed to this report.