CNN
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Special Counsel Jack Smith is arguing for a reopening of his office’s case regarding the use of 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 dismiss Trump because prosecutors lacked constitutional authority was “novel” and “without 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.
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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 11th District judges will serve on the three-judge panel that will consider Cannon’s dismissal of the charges.
This story has been updated with additional details.
