Special prosecutor Jack Smith has requested the 11th Circuit Court of Appeals in the United States to overturn Judge Aileen Cannon’s ruling, dismissing the Department of Justice’s prosecution of former President Donald Trump in a case involving classified documents.
Smith, in a filing submitted to the appeals court on Tuesday, stated, “The Attorney General effectively appointed a special prosecutor, and he has received appropriate funding.”
“The district court departed from binding Supreme Court precedent and misinterpreted the regulations authorizing the appointment of special prosecutors, and failed to adequately consider the long history of the Attorney General appointing special prosecutors,” Smith said.
In July of this year, Cannon rejected the case involving Trump’s classified documents and ruled that appointing Smith as special prosecutor violated the U.S. Constitution, particularly the appointments and appropriations clauses.
In a lengthy 93-page ruling, Cannon wrote that Smith’s prosecution of the former president “violated two foundational structural pillars of our constitutional system — the role of Congress in appointing constitutional officers and Congress’s role in authorizing expenditures.”
This ruling has raised questions about the Department of Justice’s use of special prosecutors. Earlier, Supreme Court Justice Clarence Thomas raised similar concerns about Smith’s appointment in the case of Trump v. US.
Cannon deemed Smith as a subordinate official, requiring authorization from Congress for the Attorney General to appoint him as special prosecutor. Her ruling emphasized that the Independent Counsel law, which allowed the Department of Justice to appoint special prosecutors, had expired in 1999. While Smith argued other laws justified his appointment, Cannon dismissed those arguments.
Judge Cannon’s decision has shaken the historical foundation of special prosecutors. The predecessors of special prosecutors, known as independent prosecutors, have a long history in American politics.
Past independent prosecutors operated outside the oversight of the Department of Justice. They were tasked with investigating cases where there were conflicts of interest with the Department of Justice, and prosecuting government officials and private individuals for alleged criminal behavior.
Smith’s filing challenges Cannon’s ruling on statutory grounds, as well as her interpretation of the Supreme Court’s decision in the case of US v. Nixon.
The core of the case involved former President Richard Nixon’s attempt to resist a subpoena by special prosecutor Leon Jaworski. In this case, the majority of the court defended the appointment of the special prosecutor.
Chief Justice Warren Burger wrote in the majority opinion in 1974, “The Attorney General has delegated to a special prosecutor power to represent the United States in these specific matters, a unique power and tenure.”
“This statute confers upon the Special Prosecutor definite authority to question acts of those who invoke executive privilege in seeking evidence of a character relevant to their duties under those special authorizations.”
In a statement in July of this year, Cannon expressed that the wording in the 1974 Supreme Court opinion regarding the appointment of special prosecutors was dicta, and did not bind future court rulings.
Smith disagreed with this perspective, arguing that the court’s reasoning is crucial in reaching a conclusion on executive privilege in this case. He stated that this allows the court to consider the case as justiciable.
He said, “This conclusion is a binding decision, or at least authoritative dictum. In any event, as all other courts that have considered this issue recognize, Nixon’s opposition to the appointment of the special prosecutor has been thoroughly repudiated.”
His filing also disputes how Cannon interpreted relevant congressional regulations, and points out that the court had dismissed challenges to the appointment of special prosecutors before Cannon’s ruling.
Despite Cannon’s attempts to confine her ruling to the case involving Trump, Smith warns that it has broader implications.
The pleading states, “The district court’s reasoning… suggests that every special prosecutor appointed from outside the Department of Justice and not assisted by an active U.S. Attorney is an invalid appointment; and that every Attorney General who makes such an appointment exceeds his authority; that Congress has repeatedly turned a blind eye to the continuing pattern of error; and that even the Supreme Court itself had not found this defect in Nixon.”
In November 2022, Attorney General Merrick Garland appointed prosecutor Jack Smith to serve as special prosecutor in charge of investigations into public corruption, including the case involving Trump’s classified documents and the January 6 Capitol riot.
Last June, Smith brought forth 37 felony charges against Trump in the case involving classified documents, including violations of the Espionage Act, conspiracy to obstruct justice, and making false statements to investigators. Trump has pleaded not guilty to all charges.