WASHINGTON — Lawyers for former President Donald Trump have urged a federal appeals court to uphold the dismissal of the classified documents case against him, saying a judge was correct in ruling that the prosecutor who brought the charges was illegally appointed.
The case charging Trump with hoarding classified documents at his Mar-a-Lago estate in Florida had long been seen as legally perilous for the Republicans’ White House nominee, but U.S. District Judge Aileen Cannon dismissed it in July after concluding that special counsel Jack Smith’s appointment to the job was unlawful.
The ruling brought an abrupt halt to the case, ensuring there would be no trial before the November presidential election. Another case brought by Smith, this one charging Trump with plotting to overturn the results of the 2020 election, was delayed by a Supreme Court opinion conferring broad immunity on former presidents.
Smith’s team has appealed the documents decision, calling the ruling by Cannon, who was nominated for the bench by Trump, contrary to decades of precedent. If allowed to stand, prosecutors say, the ruling would call into question the legality of hundreds of appointments across the executive branch.
Trump’s team responded with its own filing late Friday, telling the Atlanta-based 11th U.S. Circuit Court of Appeals to leave Cannon’s ruling in place.
“There is not, and never has been, a basis for Jack Smith’s unlawful crusade against President Trump. For almost two years, Smith has operated unlawfully, backed by a largely unscrutinized blank check drawn on taxpayer dollars,” Trump’s lawyers wrote.
They said that Smith “has operated without the type of oversight and accountability that are hallmarks of inferior officers,” with a tenure largely up to him and a jurisdiction that exceeds that of presidentially appointed U.S. attorneys.
In dismissing the case, Cannon asserted that no existing statute permits the appointment of a special counsel by an attorney general, though Smith’s team has said no fewer than four authorize it. She also said Smith’s appointment was unconstitutional because he was appointed directly by Attorney General Merrick Garland and was not confirmed by the Senate.
But other special counsels, including Robert Mueller during the Trump administration and Robert Hur during the Biden administration, have been appointed in the same manner as Smith. Courts rejected challenges to those appointments, Smith’s team has noted.
On Thursday, Trump’s lawyers in the 2020 federal election interference case in Washington adopted the same illegal appointment argument in urging a judge to dismiss that prosecution.