Jack Smith Urges Appeals Court To Revive Trump Docs Case, Defends His Special Counsel Position

Special counsel Jack Smith urged a federal appeals court on Monday to revive his classified documents case against former President Donald Trump.

District Court Judge Aileen Cannon, a Trump appointee, dismissed Trump’s case in July after ruling that Smith’s appointment violated both the Appointments Clause and Appropriations Clause of the Constitution. Smith argued that the lower court’s decision “needlessly casts doubt on longstanding practices in the Department of Justice and across the Executive Branch.”

“The Attorney General validly appointed the Special Counsel, who is also properly funded,” Smith’s opening brief filed with the Eleventh Circuit Court of Appeals states. “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.”

Smith’s brief argues that Cannon “erred by focusing only on the statutes that follow one particular pattern, while failing to acknowledge the vesting-and-delegation pattern that Congress has used to grant appointment power to the heads of some of the oldest and largest departments in the Executive Branch.”

Cannon’s conclusion would “raise questions about hundreds of appointments throughout the Executive Branch, including in the Departments of Defense, State, Treasury, and Labor,” according to Smith.

Justice Clarence Thomas wrote a concurring opinion that questioned the constitutionality of Smith’s appointment in July when the Supreme Court ruled on presidential immunity.

“In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States,” he wrote. “But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”