Special counsel Jack Smith is arguing to revive his office’s classified documents case against former President Donald Trump, the first formal filing since the criminal case was dismissed by Judge Elaine Cannon last month.
In a brief filed Monday with the 11th U.S. Circuit Court of Appeals in Atlanta, Smith argued that Cannon’s decision to end the Trump case because the prosecutors’ office lacked constitutional authority was “novel” and “lacks merit.”
Cannon had ruled that the Justice Department did not have the ability to appoint or fund special prosecutors such as Smith.
Smith’s team said Cannon’s decision would not only impact other special counsel prosecutions — several of which are ongoing in other courts against Trump and Hunter Biden — but also the power of leaders in the federal government, as CNN reported.
“If the Attorney General does not have the authority to appoint inferior officials, that finding would invalidate the appointment of every member of the Department who exercises significant authority and holds a permanent position, except for those few members specifically identified by statute,” Smith’s office wrote in an 81-page filing.
“The district court’s reasoning will also raise questions about hundreds of appointments across the executive branch, including the departments of Defense, State, Treasury, and Labor,” prosecutors said.
Trump was charged last summer with mishandling sensitive government documents taken from the White House during the final days of his presidency. The Republican presidential candidate also faces multiple obstruction charges for alleged efforts to obstruct a federal investigation of the documents.
The former president and his two co-defendants — Trump staffers who are also charged with obstruction — have pleaded not guilty.
The 11th Circuit is reviewing Cannon’s ruling that Smith’s appointment as special counsel was unconstitutional and that his office was being illegally funded, as CNN reported.
Notably, although other courts have upheld the use of special counsels, Cannon held that Congress did not give the Justice Department the authority to make such an appointment, and also concluded that funds for Smith’s office were not properly appropriated by lawmakers.
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