Special counsel Jack Smith asked an appeals court to revive the documents case against former President Trump, repeatedly accusing Judge Aileen Cannon of having “erred” in tossing the case after determining he was unlawfully appointed.
The brief does not otherwise call for Cannon to be removed from the case — though the 11th Circuit Court of Appeals is free to do so independently.
The 58-page filing is the first word from Smith since he pledged to appeal a ruling from Cannon that sided with Trump in questioning the legal basis for his appointment as special counsel, as well as his office’s funding.
The July ruling surprised many legal observers, as challenges to special counsel authority have failed in court for decades, particularly in the wake of the 1974 Supreme Court ruling addressing the investigation into former President Nixon.
“The Attorney General validly appointed the Special Counsel, who is also properly funded. 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 team wrote.
Monday’s brief, filed a day ahead of the deadline, offers a lengthy review of the special counsel statutes. It also takes particular issue with Cannon’s conclusion that the Supreme Court’s review of special counsel authority was “dicta,” or a remark essentially made in passing while discussing other issues in the case.
“Apart from the district court below, every court to consider the question has concluded that the Supreme Court’s determination that those statutes authorized the Attorney General to appoint the Watergate Special Prosecutor was necessary to the decision that a justiciable controversy existed and therefore constitutes a holding that binds lower courts,” prosecutors wrote.
“The district court erred when it deemed that conclusion unpersuasive dicta.”
Because the Nixon case “expressly addressed” the special counsel issue, they argued, “the district court was not entitled to cast aside carefully considered, unequivocal language from a unanimous Supreme Court.”
The filing also points to bigger picture issues, writing that Cannon “erroneously disregarded [special counsel appointment] history as ‘spotty’ or ‘ad hoc,’” warning of the risks if her ruling is upheld.
“The district court’s rationale could jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch,” prosecutors wrote.
The filing spends just one paragraph addressing Cannon’s conclusion that the funding to Smith’s office was likewise unlawfully granted, arguing her decision on the legality of his appointment underpinned that determination.
“Because its premise was wrong, so was its conclusion,” they wrote.
Updated at 4:37 p.m. ET
