Special investigator asks appeals court to reopen case against Trump

WASHINGTON – Special Counsel Jack Smith on Monday asked a federal appeals court to reopen the classified documents case against former President Donald Trump, saying a judge's decision to dismiss the charges ran counter to longstanding Justice Department practice and must be overturned.

Smith's team said U.S. District Judge Aileen Cannon made a serious error when she ruled that Smith was improperly appointed by Attorney General Merrick Garland. That position, prosecutors wrote in a brief filed in the Atlanta appeals court, contradicts rulings by judges across the country as well as “widespread and longstanding appointment practices in the Justice Department and throughout the government.”

If this proposal stands, they warned, it could “jeopardize the Justice Department's longstanding work and call into question hundreds of appointments across the executive branch.”

“The Attorney General validly appointed the Special Counsel, and he is also adequately funded,” prosecutors wrote. “In ruling to the contrary, the District Court departed from the binding jurisprudence of the Supreme Court, misinterpreted the statutes authorizing the appointment of the Special Counsel, and failed to adequately consider the long history of the Attorney General's appointment of Special Counsel.”

At issue is a provision of the Constitution known as the Appointments Clause, which requires that certain public figures – including judges, ambassadors and “all other officers of the United States” – must be appointed by the president and confirmed by the Senate. But the clause also makes an exception for so-called “inferior officers,” who can be appointed directly by the head of an agency. Smith falls into that category, according to the Justice Department, and Garland had the authority to appoint him directly as special counsel.

The appeal is the latest development in what many legal experts have long viewed as a straightforward criminal case, as Justice Department investigators have amassed a wealth of evidence over the course of the investigation, including surveillance video and an audio recording. But the case has been delayed over the past year as Cannon, a Trump-appointed judge, reviewed various motions from Trump's team before ultimately dismissing the charges and halting the case, at least temporarily.

It's unclear how long it will take for the 11th U.S. Circuit Court of Appeals to rule on the case, but even if it overturns Cannon's dismissal and revives the charges, there's no chance of a trial before the November presidential election, and Trump, if elected, could appoint an attorney general who would dismiss the case. A three-judge panel overturned Cannon's ruling in December 2022, ruling that she had exceeded her authority in the document investigation by appointing an independent arbitrator to review classified records the FBI seized during a months-long search of his Mar-a-Lago estate.

The case includes dozens of charges that Trump illegally stored classified documents from his presidency at his Palm Beach, Florida, estate and obstructed government efforts to get them back. Trump has pleaded not guilty.

Smith was appointed special counsel by Garland in November 2022 to investigate Trump's handling of the documents as well as his efforts to overturn the 2020 presidential election before the riots at the U.S. Capitol on January 6, 2021.

Both investigations resulted in criminal charges, but prosecutions for election tampering also face an uncertain future after the U.S. Supreme Court last month granted Trump broad immunity and narrowed the scope of the case.

Defense attorneys in the secret documents case had argued that Smith's appointment violated the Constitution's Appointments Clause, prompting Cannon to schedule a multi-day hearing in June.

The judge ruled in favor of the defense, saying Garland could not appoint Smith under a specific law. Smith was appointed illegally because he was neither nominated for office by the president nor confirmed by the Senate.

But prosecutors said Monday that no fewer than four laws give the attorney general the power to appoint a special prosecutor like Smith – an authority they said has been recognized by judges across the country for decades.

“From before the Justice Department was created to the present day, attorneys general have repeatedly appointed special counsel and independent advisers to handle federal investigations, including the prosecution of Jefferson Davis, alleged corruption in federal agencies (including the Justice Department itself), Watergate, and others,” Smith's team wrote.