Special counsel Jack Smith pushes to revive Trump prosecution on classified documents

Jack Smith tells appeals court that trial judge made grievous errors and ignored decades of precedent when she dismissed the case.

Special Counsel Jack Smith is trying to reopen the classified documents case against Donald Trump. Picture: AFP.

A federal judge in Florida made a series of grievous errors and ignored decades of precedent when she dismissed the case charging Donald Trump with illegally retaining classified documents after he left the White House, special counsel Jack Smith told an appeals court Monday.

Smith’s team urged the Atlanta-based 11th U.S. Circuit Court of Appeals to reinstate the 40-count indictment against the former president, which U.S. District Judge Aileen Cannon tossed in July after finding the special counsel’s appointment was unconstitutional. That bombshell opinion “is at odds with widespread and longstanding appointment practices in the Department of Justice and across the government,” Smith’s prosecutors wrote in their opening brief.

Cannon, a Trump appointee confirmed in 2020, said in her ruling that she wasn’t persuaded by decisions spanning back to the Watergate era upholding the legality of the appointments of outside prosecutors, including by the Supreme Court. Officials such as Smith, she said, typically must be confirmed by the Senate unless Congress has given such appointment powers to the executive branch alone.

If upheld, the decision could jeopardise the future of a mechanism the Justice Department has long relied upon to avoid conflicts of interest in investigations of politically powerful people. Even if Smith’s appeal is successful, the documents case wouldn’t go to trial soon. A spokesman for Trump didn’t immediately respond to requests for comment.

Monday’s submission marked the start of what is sure to be a protracted legal battle over the fate of the documents case, in which prosecutors alleged Trump wilfully kept classified material — including sensitive national-security information — after he left the White House and obstructed the government’s repeated efforts to recover it.

The case moved so slowly under Cannon’s oversight that some legal observers questioned whether the judge was in over her head.

Attorney-General Merrick Garland appointed Smith in November 2022 to oversee the Justice Department’s Trump probes, shortly after the former president announced he would make another bid for the White House.

“The Attorney-General validly appointed the Special Counsel, who is also properly funded,” Smith told the appeals court. Cannon’s “rationale could jeopardise the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch,” he said.

Trump has been running to return to the White House while facing four different prosecutions, all of which are facing varying degrees of uncertainty. The Supreme Court in July imperilled Smith’s other prosecution of the former president, on allegations Trump sought to subvert the 2020 election. The high court’s decision found that former presidents enjoy sweeping immunity for their acts while in office.

In New York, Trump was convicted earlier this year on 34 felony counts of falsifying business records for covering up a payment to a porn star. But the timing of the remaining proceedings in that case is uncertain. Trump’s lawyers have asked the judge to delay his Sept. 18 sentencing until after the election, to give them time to appeal an anticipated ruling on whether the Supreme Court’s immunity decision affects the case. Prosecutors said they would defer to the judge on the matter.

The fourth case, involving election-interference allegations in Georgia, is delayed indefinitely.

Cannon’s ruling didn’t address the substance of the allegations outlined in the documents case. Smith alleged Trump held on to information about U.S. and foreign defence and weapons capabilities, U.S. nuclear programs, potential vulnerabilities of the U.S. and its allies to military attack, and plans for a possible retaliation in response to a foreign attack.

Prosecutors also said the former president enlisted staff at his South Florida residence and private resort to delete surveillance footage showing boxes being moved around the property so their contents couldn’t be turned over to a grand jury. Trump was charged alongside his personal aide, Walt Nauta, and Carlos De Oliveira, a maintenance worker on the property. They all pleaded not guilty.

Dow Jones