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.
‘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.’
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 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 in her decision last month.
‘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.
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.
This is a developing story. Please check back for updates.
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