ATLANTA—Justice Department Special Counsel Jack Smith has asked the federal appeals court in Atlanta to put the trial of Donald Trump for stealing classified documents from the White House and taking them to his Mar-a-Lago estate in Florida back on track.
If Smith wins his demand—and there’s a good chance he will—the judges in the appellate court will send the whole case back down to U.S. District Court for Southern Florida. There, Trump-appointed Judge Aileen Cannon had tossed it out several months ago, saying Smith was illegally appointed.
In lay language, Smith’s filing in the appeals court says Judge Cannon was wrong.
The case is important because its reinstatement would further entangle already convicted felon Trump in more legal troubles, for which he’s spent millions of dollars in campaign contributions, just as he’s trying to recover his balance in the presidential campaign.
The former president is again the Republican nominee for the White House. But now he faces Democratic Vice President Kamala Harris, not faltering President Joe Biden. And Trump has been lashing out in personal attacks against both, adding his own personal grievances, not running on issues.
The chance the judges in Atlanta will send the whole case back to Judge Cannon in West Palm Beach is due to their past record. They’ve already reversed her rulings twice on two Trump cases, including once on a preliminary ruling she issued in the stolen papers case.
Still, the Florida case is unlikely to start before the November election, regardless of which way the appellate judges rule. That raises the risk that if Trump wins the electoral vote and ascends again to the Oval Office, he would name Justice Department toadies who would then fire Smith.
The toadies also would go to federal courts and drop both the Florida case and the one Smith is prosecuting in D.C., concerning Trump’s actions—and lack of them—when Trumpites invaded the U.S. Capitol more than three years ago.
Trump sought to block certification
At Trump’s command, the invaders sought to prevent Congress from counting the electoral votes and certifying Biden as the winner of the prior presidential election. Smith noted his office is trying that case, too.
Smith’s long statement seeks the appeals court’s OK to reinstate the Florida purloined papers case. Trump stole the classified and secret documents, including a secret Pentagon plan to invade Iran and a document showing how many nuclear missiles each U.S. sub carries. He illegally carried them off to Mar-a-Lago and stored them in the shower or scattered them on the floor.
Smith also did not ask the appellate judges to look at Cannon’s track record in Trump cases, of delay, denials, and reversals by the higher court, and remove her from the documents case. But a legal analyst on cable television, a former veteran Justice Department prosecutor, said the appellate judges in the Atlanta court could do that on their own.
Congress “empowered the Attorney General to authorize ‘any other officer, employee, or agency of the Department of Justice’” to perform any functions the department has, including investigations and lawsuits, Smith’s office wrote in its brief to the appeals court.
In an eerie echo of Watergate, Smith cited the U.S. Supreme Court’s decision 50 years ago ordering another lawless Republican president, Richard Nixon, to turn over his White House tapes to U.S. District Chief Judge for D.C. John Sirica, who was running the Watergate trials.
Sounding like Trump’s lawyers, Judge Cannon ruled the Watergate tapes case was not a precedent for Smith to follow. The judge, as a matter of fact, called it “non-binding and unpersuasive dicta,” meaning it had no precedent at all. Smith wrote that’s not right, either.
Congress “provided that any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal… which United States attorneys are authorized by law to conduct. Congress further provided the Attorney General ‘may appoint officials…to detect and prosecute crimes against the United States.’”
In lay language, Smith told the appellate judges in Atlanta that special counsels, like special prosecutors before them, are legal and the Attorney General can appoint them without having to go through the Senate confirmation process to achieve that goal. Judge Cannon ruled the special counsels aren’t legal at all—swallowing the arguments of Trump’s lawyers hook, line, and sinker.
“The Special Counsel regulation provides a procedure for appointing a special counsel who exercises discretion over a particular matter ‘within the context of the established procedures of the [Justice] Department.’” But in an instance of “the buck stops here,” to quote former President Harry Truman, Smith said, “ultimate responsibility for the matter and how it is handled is continuing to rest with the Attorney General.”
The special counsel regulation “seeks to strike a balance between independence and accountability in certain sensitive investigations,” Smith said, in an understatement.
“The Attorney General validly appointed the Special Counsel, who is also properly funded,” Smith’s prosecutorial team wrote. “In ruling otherwise, the District Court deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the appointment, and took inadequate account of the longstanding history of Attorney General appointments of special counsels.”
Trump’s lawyers now have the right to reply to Smith’s brief, and then he can file a counter-reply before everybody goes to court. Smith asked the appeals court judges for an oral argument about their complaint, rather than just relying on legal filings.
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