Jack Smith Asks Appeals Court to Reverse Dismissal of Trump Documents Case

Special counsel Jack Smith speaks to members of the media at the U.S. Department of Justice building in Washington on Aug. 1, 2023. Saul Loeb/AFP

Special counsel Jack Smith has asked the U.S. Court of Appeals for the 11th Circuit to reverse Judge Aileen Cannon’s order dismissing the Justice Department’s prosecution of former President Donald Trump over his handling of classified documents.

“The Attorney General validly appointed the Special Counsel, who is also properly funded,” the special counsel said in a brief to the appellate court on Aug. 26.

“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.”

Cannon ruled in July that Smith’s appointment as special counsel violated the U.S. Constitution, specifically the appointments and appropriations clauses.

In a 93-page ruling, Cannon wrote that Smith’s prosecution of the former president “breaches two structural cornerstones of our constitutional scheme—the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law.”

The ruling raised questions about the Justice Department’s use of special counsels. Previously, Supreme Court Justice Clarence Thomas similarly cast doubt on Smith’s appointment in an opinion in Trump v. United States.

Cannon ruled that Smith was an inferior officer, which required Congress to authorize the attorney general to appoint him as special counsel. Her ruling highlighted that Congress had let the Independent Counsel Act, which allowed the Justice Department to appoint special prosecutors, expire in 1999. While Smith pointed to other laws to justify his appointment, Cannon rejected those arguments.

Supreme Court Precedent

Smith’s brief disputed Cannon’s ruling on statutory grounds but also took issue with her interpretation of the Supreme Court’s decision in U.S. v. Nixon. That case centered on former President Richard Nixon’s attempt to resist a subpoena from special prosecutor Leon Jaworski.

In that case, the court’s majority defended the special prosecutor’s appointment.

“The Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure,” reads the 1974 majority opinion, authored by Chief Justice Warren Burger.

“The regulation gives the Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties.”

Cannon said in July that the court’s wording about Congress authorizing special counsel appointments was dictum or nonbinding on future court decisions.

More specifically, she said that the court was engaging in dictum when it said that Congress had “vested in [the attorney general] the power to appoint subordinate officers to assist him in the discharge of his duties.”

Smith disagreed and argued that the court’s reasoning was central to reaching the case’s conclusion about executive privilege. It allowed the court to view the case as a justiciable case, he said.

“That conclusion was a binding holding, or, at least, authoritative dictum,” he said. “Either way, Nixon conclusively defeats the defendants’ challenge to the Special Counsel’s appointment, as every other court to have considered the issue has found.”

His brief also took issue with how Cannon interpreted relevant statutes from Congress and noted that courts rejected challenges to special counsel appointments prior to Cannon’s decision.

Although Cannon attempted to limit her decision to Trump’s case, Smith warned that it had broader implications.

“The district court’s reasoning ... suggests that every special counsel throughout history who was appointed from outside the Department of Justice and who did not assist a U.S. Attorney was invalidly appointed; that every Attorney General who made such appointments acted ultra vires; that Congress repeatedly overlooked the persistent pattern of errors; and that the Supreme Court itself failed to spot that flaw in Nixon,” the brief reads.