Special counsel Jack Smith appeals dismissal of Trump Mar-a-Lago 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.

Special counsel Jack Smith on Monday appealed federal Judge Aileen Cannon’s ruling dismissing his classified records Mar-a-Lago case against former President Donald Trump, arguing that his appointment is valid. 

Cannon, the U.S. District Judge for the Southern District of Florida, last month dismissed Smith's case against Trump, ruling that it violated "the Appointments Clause of the United States Constitution." 

Cannon said Smith’s appointment of special counsel was unconstitutional. 

But Smith appealed Monday. 

JUDGE DISMISSES TRUMP'S FLORIDA CLASSIFIED DOCUMENTS CASE

Donald Trump and Jack Smith  (Getty Images)

"The Attorney General validly appointed the Special Counsel, who is also properly funded," the filing states. "In ruling otherwise, the district court deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the Special Counsel’s appointment, and took inadequate account of the longstanding history of Attorney General appointments of special counsels." 

"The district court’s contrary view conflicts with an otherwise unbroken course of decisions, including by the Supreme Court, that the Attorney General has such authority, and it is at odds with widespread and longstanding appointment practices in the Department of Justice and across the government," Smith argued. "This Court should reverse."

Smith also argues that he was "properly funded through the congressionally enacted ‘permanent indefinite appropriation’ to ‘pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to'" U.S. code. 

"The district court’s contrary conclusion depended solely on its erroneous determination that no ‘other law’ supported the Special Counsel’s appointment," he continued. "Because its premise was wrong, so was its conclusion."

Republican presidential nominee former President Donald Trump speaks at a campaign rally at the Desert Diamond Arena, Friday, Aug. 23, 2024, in Glendale, Ariz.  (AP Photo/Evan Vucci)

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.

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

"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 in her decision last month. 

Special Counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump at the Justice Department on Aug. 1, 2023, in Washington, DC. (Alex Wong/Getty Images)

"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 said.

Republican Presidential candidate, former U.S. president, Donald Trump speaks at II Toro E La Capra on August 23, 2024 in Las Vegas, Nevada.  (Ian Maule/Getty Images)

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. Trump pleaded not guilty to all charges. 

Trump campaign spokesman Steven Cheung reacted to Smith's appeal Monday evening, saying every case against Trump should be tossed. 

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"As we move forward in Uniting our Nation, not only should the dismissal of the Lawless Indictment in Florida be affirmed, but be immediately joined by a dismissal of ALL the Witch Hunts," Cheung said. "The Democrat Justice Department coordinated ALL of these Political Attacks, which are an Election Interference conspiracy against Comrade Kamala's Political Opponent, President Trump." 

He added: "Let us come together to END all Weaponization of our Justice System, and Make America Great Again!"