Special counsel urges appeals court to reinstate classified papers case against Trump

By Eric Tucker – The Associated Press

Special prosecutor Jack Smith on Monday asked a federal appeals court to reinstate the classified documents case against former President Donald Trump after a judge dismissed it last month.

U.S. District Judge Eileen Cannon dismissed the case, one of four prosecutions against Trump, after concluding that Smith’s appointment as special counsel was unconstitutional.

Smith’s team then appealed to the Atlanta-based 11th Circuit Court of Appeals, and prosecutors said in their appeal that Cannon’s decision “contradicts widespread hiring practices in the Department of Justice and throughout the United States Government.”

The appeal is the latest development in a process that many legal experts consider a straightforward criminal case, but that has been derailed by delays, months of hearings before Trump-appointed Judge Cannon and, ultimately, a dismissal order, at least temporarily.

(Judge in Trump’s Mar-a-Lago classified documents conspiracy case postpones his criminal trial indefinitely)

It’s unclear how long the appeals court will take to decide, but even if it overturns Cannon’s dismissal and revives impeachment, a trial is unlikely before the November presidential election and Trump, if elected, could name an attorney general who would dismiss the case.

The case involves dozens of felony charges alleging that Trump illegally stored classified documents from his presidency at his Mar-a-Lago estate in Palm Beach, Florida, and obstructed government efforts to recover them. The former president has pleaded not guilty.

Smith was appointed special prosecutor by Attorney General Merrick Garland in November 2022 to investigate the former Republican president’s handling of documents, as well as his efforts to undo the 2020 presidential election ahead of the January 6, 2021 riot at the Capitol in Washington.

Both investigations resulted in criminal charges, though the election sabotage prosecution faces an uncertain future after the US Supreme Court ruled last month that granted Trump broad immunity, narrowing the scope of the case.

Defense lawyers in the classified documents case had argued that Smith’s appointment violated the Constitution’s Appointments Clause, a motion that led Cannon to hold a multi-day hearing in June. The judge sided with the defense, saying no specific statute allowed Garland to appoint Smith and that Smith was illegally appointed because he was not appointed to the position by the president or confirmed by the Senate.

Smith’s team is expected to point out that judges have repeatedly upheld special prosecutor appointments in numerous cases, and that an attorney general’s ability to appoint a special prosecutor is well-established.