Left: Special Counsel Jack Smith (AP Photo/J. Scott Applewhite, File). Center: Aileen M. Cannon speaks remotely during a Senate Judiciary Committee hearing (U.S. Senate). Right: Donald Trump speaks with supporters in Des Moines, Iowa (AP Photo/Charlie Neibergall, File).
The Special Counsel’s Office will soon have its first shot at persuading a panel on the U.S. Court of Appeals for the 11th Circuit that the judge in former President Donald Trump’s Mar-a-Lago case wrongly dismissed the prosecution on the ground that Jack Smith was unlawfully appointed.
The Tuesday, Aug. 27, deadline set the previous month for the government to file its opening brief is fast approaching. Although there was a school of thought that Smith might consider filing well ahead of the deadline, in a potential move to fast-track the case, there was no brief yet filed as of Monday afternoon on the East Coast.
U.S. District Judge Aileen Cannon, who has been resoundingly overruled by the 11th Circuit before, in mid-July tossed the classified documents case after “careful study” on Appointment Clause grounds — just weeks after Justice Clarence Thomas penned a concurrence questioning the special counsel’s authority in the Supreme Court immunity case Trump v. United States.
Cannon’s dismissal repeatedly cited favorably Justice Thomas’ concurrence take, which no other justice joined, writing that the U.S. Attorney General Merrick Garland unlawfully appointed Jack Smith, a “private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision,” as a special counsel that “effectively usurps” Congress and offends the separation of powers because his office and “exercise of prosecutorial power has not been authorized by law.”
More Law&Crime coverage: Trump cites Judge Cannon’s dismantling of Jack Smith’s authority to demand $100M in damages from DOJ over ‘highly offensive’ Mar-a-Lago search, reveals extent of legal bills
“The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers,” Cannon wrote. “If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigate and prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history[.]”
Smith had called defense challenges of his power to prosecute Trump “meritless,” writing that he was an “inferior officer” under the Constitution who didn’t need to be confirmed by the Senate and who remained subject to the “plenary supervision” of AG Garland and remained fireable, but Cannon, a Trump appointee, eventually sided instead with the reasoning of pro-Trump amici curiae (Latin for “friends of the court”) and Thomas in jettisoning the case.
More Law&Crime coverage: Lawyer who drafted special counsel regulations predicts fate of ‘deeply dangerous’ dismissal of Trump’s Mar-a-Lago indictment
In his brief, Smith may lean on more than a century of history — including recent special counsel history — as well as statutes and regulations, in asking the 11th Circuit, like all courts other than Cannon’s, to uphold the AG’s authority to appoint him without the advice and consent of the Senate.
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