Jack Smith: Aileen Cannon ignored ‘binding’ precedent to dismiss Trump’s classified documents case

(CN) — Special prosecutor Jack Smith on Monday accused U.S. District Judge Aileen Cannon of overlooking “binding Supreme Court precedent” when she decided to dismiss the classified documents case against former president Donald Trump earlier this summer.

Cannon, a Trump-appointed federal judge in the Southern District of Florida, dismissed the criminal charges against Trump in July when she ruled that Smith had been unlawfully appointed by Attorney General Merrick Garland to lead the probe.

“The attorney general validly appointed the special counsel, who is also properly funded,” prosecutors write in the 81-page appellate brief, filed Monday in the 11th Circuit Court of Appeals. “In ruling otherwise, 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.”

In June, Trump’s lawyers argued that Smith’s appointment should have been confirmed by the Senate. They claimed that, without Senate confirmation, Smith was operating as an unelected federal officer in violation of the Appointments Clause of the U.S. Constitution.

Cannon agreed.

“The appointments clause sets as a default rule that all ‘officers of the United States’ — whether ‘inferior’ or ‘principal’ — must be appointed by the president and confirmed by the Senate,” Cannon wrote in her July ruling.

But prosecutors on Monday claim that Cannon’s order rested on “flawed rationales” that cherry-picked meticulous language in the clause to rule against them. They argue that Cannon ignored the “long tradition of special counsel appointments by attorneys general and Congress’ endorsement of that practice” in her bombshell order to drop the case.

“The district court’s contrary view conflicts with an otherwise unbroken course of decisions, including by the Supreme Court, that the attorney general has such authority, and it is at odds with widespread and longstanding appointment practices in the Department of Justice and across the government,” prosecutors say.

Cannon’s July order was controversial from the jump, with many legal experts theorizing that, if upheld, the decision could create precedent deeming most special prosecutors as unlawfully appointed. Hunter Biden cited her ruling in an attempt to get his own criminal charges dropped, since those too were brought by a similarly appointed special counsel.

Notably absent from Monday’s brief was a request to replace Cannon as the presiding judge. Her presence on the case has been seen as a roadblock for prosecutors due to her past rulings on the docket and purported ties to the former president.

Earlier this year, The New York Times reported that Cannon bucked suggestions from several peers to step aside in the case because of her inexperience and assumed allegiance to Trump. Cannon has also been accused of needlessly delaying the proceedings to Trump’s benefit, indefinitely postponing the trial after it was slated to begin in May.

Additionally, Cannon was already overturned once in this case by the 11th Circuit in 2022, when she required prosecutors to uncharacteristically run the classified documents — seized by investigators during their raid at Mar-a-Lago — through a third party before using them in the case.

“Our precedents do not allow this, and neither does our constitutional structure,” the appellate court ruled at the time.

Critics of Cannon hope that a second appellate reversal could give prosecutors the ammunition to toss her from the case. But the absence of such a request in Monday’s briefing makes that an increasingly unlikely possibility, even if Smith is successful in his appeal to get the case reinstated.

Trump last year pleaded not guilty to 40 criminal charges related to his handling of classified documents after losing the 2020 presidential election. On the back of an investigation by Smith, prosecutors accused Trump of illegally stashing the federal files at his Mar-a-Lago residence in South Florida, then bucking federal efforts to recollect them.

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