Special counsel Jack Smith to appeal Trump classified documents case

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Judge Cannon rules Jack Smith's appointment 'unlawful' as he wasn't Senate confirmed

Fox News' David Spunt provides updates on Judge Aileen Cannon's decision to dismiss Trump's classified documents case over the unlawful appointment of Jack Smith. 'Outnumbered' panelists react.

The Justice Department has authorized Special counsel Jack Smith to appeal U.S. District Judge Aileen Cannon’s Monday ruling dismissing the classified records case against former President Trump, Fox News Digital has learned.

"The dismissal of the case deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel. The Justice Department has authorized the Special Counsel to appeal the court’s order," Peter Carr, spokesperson for Smith’s office, told Fox News Digital. 

Trump had faced charges stemming from Smith's investigation into his possession of classified materials at his Mar-a-Lago residence. He pleaded not guilty to all 37 felony counts from Smith’s probe, including willful retention of national defense information, conspiracy to obstruct justice and false statements.

Cannon dismissed the case against Trump for the handling of classified documents, and some legal experts called it a "strongly reasoned" opinion that eliminates the "greatest legal threat" to Trump.

CLASSIFIED DOCS CASE DISMISSAL MEANS ‘GREATEST' LEGAL 'THREAT’ TO TRUMP IS ‘GONE’: EXPERTS

Donald Trump and Jack Smith. (Getty Images)

She also dismissed the superseding indictment against Trump, deciding it violates "the Appointments Clause of the United States Constitution."

On Monday, Cannon issued a 93-page opinion dismissing the case on the grounds that the appointment of Special counsel Jack Smith to oversee the case was unconstitutional. 

It is unclear when Smith will formally appeal the ruling.

Trump, following the ruling, told Fox News' Bret Baier – the anchor and executive editor of ‘Special Report with Bret Baier’ – that he was "thrilled that a judge had the courage and wisdom to do this. This has big, big implications, not just for this case but for other cases.

"The special counsel worked with everyone to try to take me down," Trump added from Milwaukee, the site of this week's Republican National Convention. "This is a big, big deal. It only makes this convention more positive. This will be an amazing week."

TRUMP CLASSIFIED DOCS JUDGE EXPANDS HEARING TO CONSIDER 'UNLAWFUL' APPOINTMENT OF SPECIAL COUNSEL JACK SMITH

Former President Donald Trump and Special Counsel Jack Smith (Getty Images)

The Appointments Clause says, "Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States be appointed by the President subject to the advice and consent of the Senate, although Congress may vest the appointment of inferior officers in the President alone, in the Courts of Law, or in the Heads of Departments." Smith, however, was never confirmed by the Senate.

"Upon careful study of the foundational challenges raised in the Motion, the Court is convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme – the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law," Cannon wrote.

CLARENCE THOMAS SWIPES AT SPECIAL COUNSEL JACK SMITH'S APPOINTMENT IN SCOTUS IMMUNITY CASE

Former President Donald Trump sits between his attorneys Todd Blanche and John Lauro as he faces charges before Magistrate Judge Moxila A. Upadhyaya that he orchestrated a plot to try to overturn his 2020 election loss, at federal court in Washington, U.S. August 3, 2023, in a courtroom sketch. At far left is Special Counsel Jack Smith.  (REUTERS/Jane Rosenberg)

"The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere – whether in this case or in another case, whether in times of heightened national need or not," she continued.

"In the case of inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel’s strained statutory readings," Cannon added.

"In the end, it seems the Executive’s growing comfort in appointing ‘regulatory’ special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny," she also said.

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Earlier this month, Trump requested a partial pause in the classified documents case after a U.S. Supreme Court decision found that presidents have substantial immunity for official acts that occurred while they were in office.

Fox News' David Spunt, Jake Gibson, and Fox News Digital's Anders Hagstrom contributed to this report.