Special Counsel Jack Smith on Monday called for a federal agency Court of Appeal to overturn a lower court's decision to dismiss former President Donald Trump's criminal case for misusing classified information.
In a surprise move, U.S. District Judge Aileen Cannon dismissed the case in mid-July on the grounds that Smith's appointment violated the U.S. Constitution.
In his transient Monday, Smith argued that Cannon's ruling deviated from binding legal precedent, “misinterpreted” the laws governing the appointment of special counsels and “failed to adequately consider” the history of those appointments.
Cannon's decision “contradicts an otherwise unbroken series of decisions, including by the Supreme Court,” which have held that the U.S. Attorney General has the authority to appoint special prosecutors, Smith wrote in his filing to the U.S. Court of Appeals for the eleventh Circuit.
“This court should reverse the conviction,” Smith wrote.
He also asked that the case be sent back to the U.S. District Court in southern Florida, but he didn’t ask the appeals court to remove Cannon, a Trump-appointed judge, from the case.
Lawyers for Trump, the Republican presidential nominee against Democratic Vice President Kamala Harris, didn’t immediately reply to CNBC's request for comment on Smith's transient.
Even if the appeals court grants Smith's motion to overturn Cannon's decision, there may be virtually no probability that Trump will face trial on this charge before the November 5 presidential election.
Before she dropped the case, a growing variety of legal critics and others accused her of unnecessarily delaying the preliminary proceedings.
A federal grand jury indicted Trump for illegally storing tons of of highly classified secret files at his Mar-a-Lago vacation home after he left the White House in January 2021 after which attempting to obstruct government efforts to get those files back.
Smith identified in his transient Monday afternoon that the Supreme Court had held in its landmark 1974 decision, United States v. Nixon, that the Attorney General has the authority to appoint a special prosecutor.
This finding has been confirmed by all other courts coping with this issue – except the Cannon court, the special counsel wrote.
Smith also argued in his motion that the logic of Cannon's decision “unnecessarily casts doubt” on the Justice Department's longstanding practice and that it suddenly calls into query the legality of tons of of appointments across the manager branch.
“The implausibility of this result underscores why the district court's novel conclusions are without merit,” Smith wrote.
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