Special Counsel Argues Against Dismissal of Classified Documents Charges Against Trump

ATLANTA — The Justice Department special counsel charged with prosecuting former President Donald Trump for mishandling classified documents filed a brief Monday to appeal a judge’s dismissal of the case.

Trump faced felony charges resulting from hiding highly classified documents at his Mar-a-Lago estate after he left the presidency.

The judge ruled in July that the Justice Department lacked constitutional authority to appoint a special counsel.

Special counsel Jack Smith argued in his brief filed with the 11th Circuit Court of Appeals Monday that the ruling defied Supreme Court precedent and long-standing congressional appointments.

A ruling that supports the U.S. District Court’s dismissal threatens the authority of any additional special counsel appointments when the government is trying to act as its own watchdog.

Trump was indicted last year, along with a personal assistant and Mar-a-Lago property manager, on charges of illegally removing classified material from the White House and storing it in boxes. He also was charged with obstructing the FBI investigation.

Some of the boxes were found piled in a bathroom. They contained information such as engineering specifications for the most sophisticated U.S. Navy nuclear submarines and a possible invasion strategy against Iran.

Attorney General Merrick Garland appointed Smith on Nov. 18, 2022, to serve as special counsel.

Special counsels are lawyers appointed to investigate and potentially prosecute wrongdoing by government officials when there would be a conflict of interest for the usual prosecuting authorities.

In Trump’s case, the conflict of interest could be for the Justice Department to prosecute a former president.

The ruling by U.S. District Court Judge Aileen Cannon in Miami, Florida, said Garland never should have been allowed to appoint Smith.

A primary issue is the appointments clause of the Constitution.

It says the president can appointment public officials after confirmation by the Senate. It also says Congress can delegate appointments to “inferior” public officials, the courts or to the heads of government departments.

“None of the statutes cited as legal authority for the appointment … gives the attorney general broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by special counsel Smith,” Cannon wrote in her ruling.

A special counsel requires appointment by the president with confirmation by the Senate, which was not the case with Smith, the judge said.

Smith argued in his brief that his appointment continues the “broad authority” of Congress to allow top public officials to structure their agencies in a way that helps them carry out their responsibilities.

It includes the Justice Department’s authorization to “appoint inferior officers and assign specific matters to attorneys such as the special counsel,” Smith wrote.

Special counsels — also known as special prosecutors — have been used by the federal government as far back as the Civil War prosecution of Confederate States President Jefferson Davis.

Smith drew support for his argument from the 1974 Supreme Court case of U.S. v. Nixon. In that case, the court backed the authority of a special counsel to obtain a subpoena ordering Richard Nixon to release tapes and documents related to the Watergate scandal.

A Trump spokesman said Monday the Atlanta-based 11th Circuit should affirm dismissal of the classified documents case and any other charges against the former president.

Trump has 30 days to respond to Smith’s brief.

The case is U.S. v. Trump et al. in the U.S. Court of Appeals for the 11th Circuit.

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