Special
counsel appeals Trump classified documents case dismissal
Jack Smith
argued trial judge Aileen Cannon erred in tossing the charges on grounds he was
illegally appointed
Hugo Lowell
in Washington
Mon 26 Aug
2024 23.39 BST
Special
counsel prosecutors asked a federal appeals court on Monday to reinstate Donald
Trump’s criminal case over his retention of classified documents, arguing the
trial judge was wrong to toss the charges on grounds that the prosecution
team’s appointment violated the US constitution.
The
submission of the filing by the special counsel, Jack Smith, marks the start of
what is likely to be a protracted legal battle that is likely to reach the US
supreme court and with it, the viability of not just the documents case but
Trump’s criminal case in Washington.
Over 81
pages, prosecutors argued that the US district judge Aileen Cannon erred in
tossing the charges on grounds that the special counsel was illegally
appointed, complaining that she ignored prior court rulings and misread at
least four statutes that authorized Smith’s appointment.
The filing
to the US court of appeals for the 11th circuit merely starts a process that
could take months or potentially years to resolve, as prosecutors try to
resuscitate their moribund case against Trump that once appeared the most
legally perilous for the former president.
Cannon’s
stunning decision to dismiss the classified documents case was based on a key
distinction – compared with other special counsels – that Smith had been
brought in externally and was not a Senate-confirmed justice department
official when he was named to lead the Trump cases.
“Because
special counsel Smith’s exercise of prosecutorial power has not been authorized
by law, the court sees no way forward aside from dismissal of the superseding
indictment,” Cannon wrote in her ruling.
But
prosecutors argued in their appeals brief that Cannon was wrong to focus on
whether Smith was an existing justice department official or if he had been
Senate confirmed, because the attorney general has broad authority to appoint
prosecutors under federal law.
“Under the
appointments clause,” prosecutors wrote, “Congress may
vest a head of department with the power to appoint an inferior officer. Here,
Congress has authorized the attorney general, by law, to appoint as an inferior officer the special counsel.”
Prosecutors
also argued that Cannon was wrong to reject four statutes that they had
contended allowed Smith to lead the Trump criminal prosecutions.
The dispute
over the four statutes, which was litigated during an unusual multi-day hearing
in federal district court in Fort Pierce before Cannon dismissed the case, is
likely to take center stage in the appeals process that could take months or
years.
Prosecutors
contended in their filings, for instance, that Section 515 of Title 28 of the
US Code allows an officer of the US justice department to run legal proceedings
when “specially directed by the attorney general under law”.
Cannon
disputed in her ruling that Section 515 allowed the attorney general to appoint
whomever they liked, writing that she took “under law” to mean only existing officers of the
justice department, named to their posts under statutory law – not just internal special counsel
regulations – could act as special attorneys.
Prosecutors
also contended that Section 533, which says the attorney general may appoint
officials to detect and prosecute crimes against the United States, gave Merrick
Garland the power to name Smith as special counsel for the Trump cases.
Cannon was
similarly unconvinced on that score, ruling that Section 533 was related to
hiring FBI officials, and prosecutors’ interpretation would allow the attorney
general to stand up special prosecutors with the power of US attorneys without them having to go through
Senate confirmation.
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