Special counsel Jack Smith tells appeals court that documents case dismissal ‘lacks merit’

Special counsel Jack Smith told a federal appeals court overseeing his classified documents case against former President Donald Trump that a lower court’s decision to dismiss the charges “lacks merit.”

In a 57-page filing on Monday, Mr. Smith asked the 11th U.S. Circuit Court of Appeals to reverse U.S. District Judge Aileen Cannon’s decision to dismiss the case on the grounds that his appointment of special counsel by Attorney General Merrick Garland was unlawful.

In July, Judge Cannon ruled that Mr. Smith wasn’t lawfully appointed as special counsel because he wasn’t confirmed by the Senate to his position, and dismissed the indictment against Mr. Trump.

“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,” Mr. Smith’s filing read, asking the federal appeals court to reverse Judge Cannon’s move. “The district court’s contrary reasoning lacks merit.”

Mr. Smith argued in his filing that two federal statutes support the appointment of a special counsel and that the Supreme Court confirmed the legality of a special prosecutor — which Mr. Smith says is “comparable to a special counsel” — in United States v. Nixon.

Judge Cannon, a Trump appointee, in July dismissed Mr. Smith’s federal case against the former president in Florida, reasoning that Mr. Smith wasn’t properly appointed special counsel and was never confirmed to the position by Congress.

“The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,” Judge Cannon wrote in her order.

“If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so,” the judge wrote.

Mr. Smith had charged the former president with dozens of felonies over his alleged handling of classified documents at Mar-a-Lago. The special counsel also claimed the former president obstructed law enforcement efforts to retrieve the classified documents.

Mr. Trump pleaded not guilty.

Judge Cannon’s dismissal of the federal charges in Florida was a second major setback for Mr. Smith in July. The decision came roughly two weeks after the Supreme Court ruled in favor of Mr. Trump that presidents have some immunity from criminal prosecutions.

On July 1, the high court in a 6-3 decision said presidents have absolute immunity from charges for core presidential functions, presumed immunity for other official actions, and no immunity for unofficial acts.

The decision was a win for Mr. Trump in that it delayed lower court proceedings against him up and down the East Coast and will force lower court judges to grapple with the precedent and weigh various charges to evaluate whether or not Mr. Trump has immunity.

His federal election fraud case in Washington has been on hold for months as the high court reviewed the immunity claims.

In that dispute, Mr. Smith charged the former president with actions related to his contest of the 2020 election results and the riot at the U.S. Capitol on Jan. 6, 2021.

Next week, U.S. District Judge Tanya Chutkan, an Obama appointee, will hold the first hearing in that dispute since last year.