The same reasoning behind U.S. District Judge Aileen Cannon’s decision to dismiss the criminal case against Donald Trump for hoarding classified documents would threaten to gut the military, Treasury and several other government agencies, the Department of Justice argued Monday in its attempt to revive the case.
Department of Justice special counsel Jack Smith filed a legal brief before the 11th Circuit Court of Appeals in Atlanta, asking the court to reverse Cannon’s controversial decision to tank the case.
Cannon’s decision to kill what was viewed as the strongest and most provable case against the former president shocked legal scholars, several of whom questioned her impartiality.
The Trump-appointed judge argued that Smith was “unlawfully appointed” as the lead prosecutor of the documents case, upending a 100-year practice of the Justice Department appointing prosecutors with some degree of independence.
Cannon questioned Attorney General Merrick Garland’s ability to assign anyone but a Senate-confirmed U.S. attorney to lead a criminal investigation of this kind. Despite the long track record, the judge insisted that “the appointment of private citizens like Mr. Smith — as opposed to already-retained federal employees — appears much closer to the exception than the rule.”
However, the DOJ’s appeal did not go as far as some anticipated, as prosecutors stopped short of asking the appellate court to force the judge off the case. Instead, Smith’s prosecution team hit back by telling appellate judges that Cannon’s reasoning would, in essence, call into question how every executive branch functions. If the AG isn’t permitted to appoint people to do their jobs independently, how can the heads of any major department do so, Smith’s team asked.
“The district court’s reasoning also needlessly casts doubt on longstanding practices in the Department of Justice and across the executive branch,” the team wrote. “The district court’s rationale would likewise raise questions about hundreds of appointments throughout the executive branch, including in the Departments of Defense, State, Treasury, and Labor.”
“The implausibility of that outcome underscores why the district court’s novel conclusions lack merit,” they added.
Until this summer, Smith’s charges against Trump in South Florida were viewed as the most likely of the criminal charges the former president faced to succeed at trial, given the case’s relative simplicity. Trump repeatedly told federal investigators he no longer had classified documents in his possession after leaving the White House, but FBI agents who searched his oceanside estate of Mar-a-Lago found dozens of sensitive records marked “Top Secret” or “classified.” Trump was indicted for retaining national secrets and obstructing the investigation.
Cannon’s surprise decision to unravel the case came weeks after the conservative-leaning Supreme Court granted Trump a sweeping new definition of immunity that severely weakened Smith’s separate criminal case in Washington against the former president. That case focused on how Trump orchestrated a plan to stay in power after losing the 2020 election.
Justice Clarence Thomas used the Supreme Court’s immunity decision to issue a concurrence that recycled an unusual theory calling into question the special counsel’s appointment. It ended up serving as a road map for Cannon’s decision to dismiss the Mar-a-Lago case.
Smith’s 81-page brief criticizes Cannon’s logic at every turn, calling her out for ignoring another major Supreme Court decision with uncanny parallels to this case and even arguing over grammar.
Prosecutors previously tried to convince Cannon of Smith’s authority by pointing to statutes that empower the AG to hire attorneys who are “specially retained under authority of the Department of Justice” and “commissioned” to do a particular task. But the judge wouldn’t consider that an official appointment and wrote that the words “retain” and “appoint” were not “invariably interchangeable.” Cannon refused to “engage” in what she called “such linguistic distortion.”
In Monday’s appellate court filing, prosecutors pointed out that the word “appoint” appears in the same statute’s previous paragraph — and framed the disagreement as a matter of reading comprehension.
Smith also asked the appellate court to consider how Cannon brushed off the precedent set in 1974 when the Supreme Court ordered President Richard Nixon to turn over damning Watergate tapes. In her decision, Cannon trivialized the fact that the Supreme Court accepted the Nixon special prosecutor’s authority, dismissing the high court’s take as mere “dicta,” legal remarks that are said in passing but not meant to be binding on lower courts.
“The district court was not entitled to cast aside carefully considered, unequivocal language from a unanimous Supreme Court,” prosecutors countered.
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Jose Pagliery is a reporter at NOTUS.