Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
Jack Smith will be out of a job soon, but he wants at least one of his cases against President-elect Donald Trump to remain on the books.
At least for a little while longer — and in abbreviated form.
On Tuesday, members of the special counsel’s office submitted the government’s 50-page reply brief in the Mar-a-Lago documents case dismissal battle with the U.S. Court of Appeals for the 11th Circuit.
And, while the prosecution against Trump himself ended on Tuesday afternoon, the government insists the dismissal must still be reversed. In fact, the government wants exactly both of those things to happen.
“The government has moved to dismiss this appeal as to Donald Trump,” a footnote at the outset reads. “If granted, defendant Trump will not appear in the caption in future filings in this case.”
At the same time, the special counsel aims to shore up the basic foundation on which Trump has long been prosecuted.
The dispute before the 11th Circuit is largely a matter of whether U.S. District Judge Aileen Cannon correctly applied the law when she ruled that Smith’s anti-Trump remit was wholly unconstitutional.
In the heat of the summer, the Southern Florida judge, with a surprise ruling, ordered a kibosh on proceedings based on a novel understanding of the Appointments Clause of the U.S. Constitution.
In August, Smith filed his opening salvo in a bid to resuscitate the long-beleaguered case. In October, the defendants filed their joint response — urging the appellate court to vindicate the lower court.
Now, as the cases against Trump slowly go the way of the buffalo, the government wants to keep the special counsel’s authority — and the authority to appoint special counsel — both alive and beyond dispute.
“The Supreme Court held more than 50 years ago that Congress vested the Attorney General with the power to appoint special prosecutors like the Special Counsel,” the government’s reply brief continues. “Defendants’ principal-officer and Appropriations-Clause arguments are likewise flawed under binding precedent, settled practice, and common sense.”
To hear the fraught collection of Department of Justice employees tell it, the lower court’s ruling cannot be allowed to stand because it flies in the face of “the long history of special-counsel appointments” and directly contradicts “the text, context, and history of the four statutes” identified in a 1974 Supreme Court ruling that Attorney General Merrick Garland relied on to appoint Smith.
Trump’s attorneys have rubbished Smith and Garland for their reliance on that case — as opposed to a specific statute.
“No statute supports Smith’s appointment,” the defense brief argues. “That is why [the special counsel’s office’s] brief starts by emphasizing a sentence from Nixon v. United States, that, respectfully, cannot qualify as anything but unreasoned and unpersuasive dictum.”
Smith, in retreat on the case itself but not on broader precedent, is imploring the 11th Circuit to keep the Nixon standard intact.
The government says Trump’s previous arguments in support of Cannon’s reasoning “rests on an inaccurate historical narrative in which prior special counsels were mere subordinates to U.S. Attorneys” and a concomitant narrative in which “Congress has silently acquiesced in a purported usurpation of its power.”
The special counsel’s office goes all the way back to 1870 — with the passage of the DOJ Act — to make the case that special counsels were hired independent of U.S. Attorneys in order to “direct the investigation and prosecution of high-profile cases.”
A typical paean to history in the government’s brief reads:
The Attorney General — like other department heads — has relied on Congress’s broad grant of power to staff and operate his department for more than 150 years. And until this case, courts, including the Supreme Court in Nixon, had uniformly upheld the Attorney General’s appointment of special prosecutors like the Special Counsel. The contrary view adopted by the district court and defendants would mean that “Congress has gotten the Appointments Clause quite wrong” for more than 150 years, and “clear Supreme Court precedent, scores of federal laws, and hundreds of past executive branch designations would all have to fall.”
Smith’s office, perhaps notably, makes short shrift of the concurrence by Justice Clarence Thomas — the overarching piece of legal writing on which Cannon authored her own dismissal.
That concurrence was tacked onto the landmark case where Chief Justice John Roberts applied the concept of presidential immunity to criminal prosecution. Cannon would go on to famously use the concurrence to that opinion to squelch special Smith’s authority. Thomas’ concurrence largely echoed arguments made by conservative amici curiae on the Mar-a-Lago case docket.
In one line, in one lengthy footnote, the special counsel references the Thomas concurrence to quickly dispute the idea that Congress had to pass a law that allowed for the creation of a special counsel’s office and an officer in charge of said office.
Instead, the government argues, “when Congress vests in a department head the power to appoint an officer who holds a continuing position and exercises significant responsibility under federal law, that law satisfies any requirement that Congress establish an ‘office’ by Law.”
Along those lines, the government says the special counsel, while someone in charge of an office, is still essentially a DOJ employee — and as an employee does, in fact, answer to the attorney general.
“By statute, the Attorney General retains plenary control over all officers of the Department of Justice,” the brief continues. “The Attorney General thus has unfettered authority to ‘direct and supervise’ the Special Counsel, who lacks power to render a final decision on behalf of the Executive Branch without review and control by a superior. And as with most officers he has appointed, the Attorney General has authority to remove the Special Counsel, who enjoys no statutory insulation from removal. Accordingly, the Special Counsel is an inferior, not a principal, officer.”
Also of note, the case itself still names Trump’s longtime valet Waltine “Walt” Nauta and Mar-a-Lago maintenance chief Carlos de Oliveira as codefendants. The government’s previously submitted motion to dismiss the case was for Trump alone.
Later on Tuesday, the 11th Circuit, in a two-page order, granted the motion to dismiss the appeal as to Trump “alone.”
The terse decision by the appeals court, while still keeping the case alive, likely did not rely on the government’s Tuesday filing.
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