Special Counsel Jack Smith is pushing back against Judge Aileen Cannon’s decision to dismiss his case against President Trump regarding events at Mar-a-Lago. Smith has taken his appeal to the United States Court of Appeals for the 11th Circuit, seeking to overturn the ruling without calling for Cannon’s recusal from the case.
Judge Cannon, who was appointed by Trump in 2020, based her dismissal on the argument that Smith’s appointment by Attorney General Garland violated the Constitution. She contended that as a former war crimes prosecutor, Smith should have been appointed by the president and confirmed by the Senate. This misstep by Garland, in her eyes, tainted the entire case irreparably.
In an 81-page filing, Smith challenges Cannon’s decision, claiming it goes against established legal practices. He argues that her ruling contradicts longstanding appointment procedures and sets a dangerous precedent that diverges from previous Supreme Court decisions. The government maintains that Garland had the authority to appoint Smith as a special counsel to handle specific matters, including the Mar-a-Lago case.
The Appointments Clause dictates that superior officers must be nominated by the president and confirmed by the Senate, while inferior officers can be appointed by other means as determined by Congress. Judge Cannon acknowledged that Smith was an inferior officer but contended that there was no legal basis for Garland to appoint him to the position.
Smith invokes the precedent set by United States v. Nixon, where the Supreme Court seemed to endorse the attorney general’s power to appoint subordinate attorneys. He argues that without this authority, the regulations empowering special prosecutors to represent the government’s interests in litigation would be rendered ineffective.
Despite referencing this historical precedent, Judge Cannon deemed it non-binding and lacking in precedential value. Smith counters this by emphasizing the importance of allowing the attorney general to appoint prosecutors to handle specific federal investigations, citing a law review article written by Justice Brett Kavanaugh.
The Mar-a-Lago case, which includes 40 criminal charges against Trump for retaining classified documents at his Florida estate, was considered a significant legal challenge for the former president. Judge Cannon’s skepticism towards the government’s case was evident from the outset, as she appointed a special master to oversee evidence collection. However, this decision was later overturned by the 11th Circuit due to concerns over separation of powers.
If the 11th Circuit rules in favor of Smith’s appeal, the case will return to Judge Cannon’s courtroom for further proceedings. As of now, no trial date has been set due to ongoing disputes over jury instructions and the handling of crucial evidence in the case. Judge Cannon has also raised concerns about the government’s use of memoranda from one of Trump’s attorneys, questioning whether it violates attorney-client privilege.
In a potential nod to the Supreme Court, Smith quotes Justice Kavanaugh’s views on the tradition of appointing outside prosecutors for federal investigations. This move could be strategic should the case escalate to the highest court in the land. Justice Kavanaugh himself has criticized previous decisions that endorsed the role of special counsels, indicating a potential split among the justices on the issue.
Senior Justice Clarence Thomas has echoed Judge Cannon’s concerns, suggesting that Smith’s prosecution may run counter to the Constitution’s structural framework. With the legal battle over the Mar-a-Lago case intensifying, the implications for the future of special counsels and presidential accountability remain uncertain.
As the case continues to unfold, the legal community and the public at large will be closely watching the developments in this high-profile dispute. The outcome of Smith’s appeal to the 11th Circuit could have far-reaching consequences for the balance of power between the executive branch and the judiciary, shaping the landscape of future investigations into presidential conduct.