The harsh appeal brief from Jack Smith was sent in on Monday afternoon. He called Judge Aileen Cannon’s decision to throw out the case a “contrary view” that goes against “widespread and longstanding appointment practices.”
Soon, the Special Counsel’s Office will have its first chance to show the U.S. Court of Appeals for the 11th Circuit that the judge who threw out the prosecution in the Mar-a-Lago case against former President Donald Trump did so illegally because Jack Smith was named to the position without the right credentials.
The government has until Tuesday, August 27, to file its opening brief, which was set as a date last month. However, some people thought Smith might file way before the deadline, possibly to speed up the case. As of Monday afternoon on the East Coast, no brief had been filed yet.
The 11th Circuit has strongly disagreed with U.S. District Judge Aileen Cannon in the past. In mid-July, after “careful study,” Cannon threw out the classified documents case citing the Appointment Clause.
This happened just a few weeks after Justice Clarence Thomas wrote a concurrence questioning the special counsel’s authority in the Supreme Court immunity case Trump v. United States.
Justice Thomas wrote that the U.S. Attorney General Merrick Garland illegally appointed Jack Smith as a special counsel, even though he was a “private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision.”
This “effectively usurps” Congress and violates the separation of powers because Smith’s office and “exercise of prosecutorial power has not been authorized by law,” which was a reason why Cannon was fired. No other justices agreed with Thomas.
“The Special Counsel’s job takes over that important legislative power and gives it to a Head of Department, which threatens the structural freedom that comes from the separation of powers,” Cannon wrote.
“There is a legal way for the political branches to give the Attorney General the power to name Special Counsel Smith to look into this case and bring charges with all the authority of a United States Attorney.”
He can be chosen and confirmed using the standard way spelled out in the Appointments Clause, which is how Congress has chosen and confirmed US attorneys in the past.
Smith wrote that defense challenges to his authority to prosecute Trump were “meritless,” saying that he was a “inferior officer” under the Constitution who didn’t need to be confirmed by the Senate and who was still subject to the “plenary supervision” of AG Garland and could be fired.
But Cannon, who was appointed by Trump, eventually agreed with the reasoning of pro-Trump amici curiae (Latin for “friends of the court”) and Thomas and threw out the case.
In his brief, Smith may use more than a hundred years of history, including recent history of special counsels, as well as laws and rules to ask the 11th Circuit, along with all courts except Cannon’s, to support the AG’s power to choose him without the Senate’s advice and consent.