Former U.S. President Donald Trump delivers a speech during an event following his impeachment on charges of possessing classified documents, at Trump National Golf Club in Bedminster, New Jersey, June 13, 2023.
Amr Alfiky | Reuters
Special Counsel Jack Smith on Monday asked a federal appeals court to overturn a lower court's decision to dismiss criminal proceedings against former President Donald Trump for misusing classified documents.
In a surprise move, U.S. District Judge Aileen Cannon dismissed the case in mid-July on the grounds that Smith's appointment violated the U.S. Constitution.
In his brief Monday, Smith argued that Cannon's ruling deviated from binding legal precedent, “misinterpreted” the laws governing the appointment of special counsels and “failed to adequately consider” the history of those appointments.
Cannon's decision “contradicts an otherwise unbroken series of decisions, including by the Supreme Court,” which have held that the U.S. Attorney General has the authority to appoint special prosecutors, Smith wrote in his filing to the U.S. Court of Appeals for the 11th Circuit.
“This court should reverse the conviction,” Smith wrote.
He also asked that the case be sent back to the U.S. District Court in southern Florida, but he did not ask the appeals court to remove Cannon, a Trump-appointed judge, from the case.
Lawyers for Trump, the Republican presidential nominee against Democratic Vice President Kamala Harris, did not immediately respond to CNBC's request for comment on Smith's brief.
Even if the appeals court grants Smith's motion to overturn Cannon's decision, there is virtually no chance that Trump will face trial on this charge before the November 5 presidential election.
Before she dropped the case, a growing number of legal critics and others accused her of unnecessarily delaying the preliminary proceedings.
A federal grand jury indicted Trump for illegally storing hundreds of highly classified secret files at his Mar-a-Lago vacation home after he left the White House in January 2021 and then attempting to obstruct government efforts to get those files back.
Smith pointed out in his brief Monday afternoon that the Supreme Court had held in its landmark 1974 decision, United States v. Nixon, that the Attorney General has the authority to appoint a special prosecutor.
This finding has been confirmed by all other courts dealing with this issue – with the exception of the Cannon court, the special counsel wrote.
Smith also argued in his motion that the logic of Cannon's decision “unnecessarily casts doubt” on the Justice Department's longstanding practice and that it suddenly calls into question the legality of hundreds of appointments across the executive branch.
“The implausibility of this result underscores why the district court's novel conclusions are without merit,” Smith wrote.
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