MIAMI — Special Counsel Jack Smith says U.S. District Court Judge Aileen Cannon was wrong when she dismissed the case last month against former President Donald Trump for mishandling classified and top-secret documents at his Mar-a-Lago estate in Florida.
In a brief filed with the 11th Circuit Court of Appeals, Smith says Judge Cannon was also mistaken in ruling that the process used to appoint the Special Counsel was unconstitutional.
Smith is appealing Cannon’s ruling, asking the 11th Circuit Court to reverse her order to dismiss the case and send it back “for further proceedings.” In his brief, the Special Counsel does not ask the court to remove the Trump-appointed judge from the case.
Even before her dismissal, Cannon was criticized by legal observers for delays and rulings that favored Trump. If the Appeals court reverses her ruling, many legal observers believe it may also ask Cannon to recuse herself from the case.
In her ruling last month, Judge Cannon said that Attorney General Merrick Garland exceeded his constitutional authority in appointing a prosecutor who was not subject to Congressional approval. “The Special Counsel’s position effectively usurps that important legislative authority,” she wrote, “threatening the structural liberty inherent in the separation of powers.”
Cannon’s opinion runs counter to decades of rulings by other federal courts upholding the constitutionality of the Special Counsel’s office.
In her analysis, Cannon examined an important 1974 Watergate-era Supreme Court opinion. Cannon determined that the Justice’s “passing remarks” are not “binding precedent on future cases.” But in his brief Smith says, “The district court erred.” In that case, Smith says the Supreme Court held “the Attorney General has statutory authority…to appoint a special prosecutor comparable to the Special Counsel.”
Smith lists four statutes passed by Congress that authorize the appointment and funding of the Special Counsel’s office.
“Precedent and history confirm those authorities,” Smith writes, “as do the long tradition of special-counsel appointments by Attorneys General and Congress’ endorsement of the practice.” Special Counsels have been appointed by Attorneys’ General for more than 150 years, Smith points out, and were used after the Civil War to prosecute Jefferson Davis for treason and a conspirator involved in the assassination of President Lincoln.
Trump’s lawyers have 30 days to file their reply to Smith’s brief. Smith is asking the 11th Circuit to schedule oral arguments, saying he believes they “would assist the Court’s decisional process in this case of significant public importance.”
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