Special Counsel Jack Smith told the Court of Appeals: The U.S. Supreme Court has repeatedly called it an “error” to dismiss the case against former President Trump after ruling that Judge Eileen Cannon was illegally appointed.
The brief did not ask that Cannon be removed from the case, but the 11th Circuit is free to do so on its own.
The 58-page filing marks Smith’s first comments since promising to appeal the ruling of Cannon, who joined Trump in questioning the legal basis of Smith’s appointment as special counsel and the office’s funding.
The July ruling surprised many legal experts because challenges to the special counsel’s powers have been unsuccessful in court for decades, particularly since a 1974 Supreme Court decision in the investigation of former President Nixon.
“The Attorney General duly appointed a special counsel who was properly funded. In holding otherwise, the District Court deviated from binding Supreme Court precedent, misinterpreted the law authorizing the appointment of special counsels, and failed to fully consider the longstanding history of Attorney General appointments of special counsels,” Smith’s team wrote.
Monday’s brief, filed just one day before the deadline, explores the law regarding special counsels at length and takes particular issue with Judge Cannon’s conclusion that the Supreme Court’s review of special counsel powers was “arbitrary” — a remark made essentially off-hand while discussing other issues in the case.
“Every court that has considered this issue, except the lower courts, has concluded that the Supreme Court’s holding that these statutes empower the Attorney General to appoint a Watergate special prosecutor is necessary to a finding that a jurisdictional controversy existed and therefore constitutes a ruling binding on lower courts,” the prosecutors wrote.
“The district court erred in finding that conclusion an unpersuasive decision.”
They argued that because Nixon “clearly addressed” the issue of special counsel, “the district court had no right to ignore the unanimous Supreme Court’s carefully considered and clear language.”
The filing said Canon “mistakenly [special counsel appointment] She described the history as “piecemeal” or “ad hoc,” and warned of the risks if the ruling were upheld.
“The District Court’s decision potentially undermines long-standing operations at the Department of Justice and calls into question hundreds of appointments across the executive branch,” the prosecutors wrote.
The filing only deals in one paragraph with Cannon’s conclusion that the funding of Smith’s office was similarly unlawful, and argues that his finding was based on his judgment about the lawfulness of his appointment.
“Because the premises were false, the conclusions were also false,” they wrote.
Updated 4:37 p.m.
