Special counsel prosecutors asked a federal appeals court on Monday to reinstate Donald Trump’s criminal case over his retention of classified documents, arguing the trial judge was wrong to toss the charges on grounds that the prosecution team’s appointment violated the US constitution.
The submission of the filing by the special counsel, Jack Smith, marks the start of what is likely to be a protracted legal battle that is likely to reach the US supreme court and with it, the viability of not just the documents case but Trump’s criminal case in Washington.
Over 81 pages, prosecutors argued that the US district judge Aileen Cannon erred in tossing the charges on grounds that the special counsel was illegally appointed, complaining that she ignored prior court rulings and misread at least four statutes that authorized Smith’s appointment.
The filing to the US court of appeals for the 11th circuit merely starts a process that could take months or potentially years to resolve, as prosecutors try to resuscitate their moribund case against Trump that once appeared the most legally perilous for the former president.
Cannon’s stunning decision to dismiss the classified documents case was based on a key distinction – compared to other special counsels – that Smith had been brought in externally and was not a Senate-confirmed justice department official when he was named to lead the Trump cases.
“Because special counsel Smith’s exercise of prosecutorial power has not been authorized by law, the court sees no way forward aside from dismissal of the superseding indictment,” Cannon wrote in her ruling.
But prosecutors argued in their appeals brief that Cannon was wrong to focus on whether Smith was an existing justice department official or if he had been Senate confirmed, because the attorney general has broad authority to appoint prosecutors under federal law.
“Under the appointments clause,” prosecutors wrote, “Congress may vest a head of department with the power to appoint an inferior officer. Here, Congress has authorized the attorney general, by law, to appoint as an inferior officer the special counsel.”
Prosecutors also argued that Cannon was wrong to reject four statutes that they had contended allowed Smith to lead the Trump criminal prosecutions.
The dispute over the four statutes, which was litigated during an unusual multi-day hearing in federal district court in Fort Pierce before Cannon dismissed the case, is likely to take center stage in the appeals process that could take months or years.
Prosecutors contended in their filings, for instance, that Section 515 of Title 28 of the US Code allows an officer of the US justice department to run legal proceedings when “specially directed by the attorney general under law”.
Cannon disputed in her ruling that Section 515 allowed the attorney general to appoint whomever they liked, writing that she took “under law” to mean only existing officers of the justice department, named to their posts under statutory law – not just internal special counsel regulations – could act as special attorneys.
Prosecutors also contended that Section 533, which says the attorney general may appoint officials to detect and prosecute crimes against the United States, gave Merrick Garland the power to name Smith as special counsel for the Trump cases.
Cannon was similarly unconvinced on that score, ruling that Section 533 was related to hiring FBI officials, and prosecutors’ interpretation would allow the attorney general to stand up special prosecutors with the power of US attorneys without them having to go through Senate confirmation.
