Special Counsel Jack Smith has filed a notice to appeal a Florida judge’s decision to toss his case against former President Donald Trump related to his handling of classified documents.
U.S. District Judge Aileen Cannon on Monday dismissed Smith’s case, citing that Smith’s special counsel appointment by Attorney General Merrick Garland was unconstitutional.
“Former President Trump’s Motion to Dismiss Indictment Based on the Unlawful Appointment and Funding of Special Counsel Jack Smith is GRANTED in accordance with this Order,” Cannon, a Trump appointee, wrote in the Monday ruling. “The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution.”
Trump had faced charges stemming from Smith’s investigation into his possession of classified materials at Trump’s 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.
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The notice of appeal was filed in the 11th Circuit. The Justice Department had no further comment Wednesday. A spokesperson for Smith had previously said that “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,” and that the Justice Department has authorized the Special Counsel to appeal the court’s order.
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.
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“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 Monday.
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“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.
Steven Cheung, Trump campaign spokesperson, reacted to Smith’s appeal notice on Wednesday, saying, “As we move forward in uniting our nation after the horrific events on Saturday, this dismissal of the lawless indictment in Florida should be just the first step, followed quickly by the dismissal of ALL of the Witch Hunts.”
“The Democrat-led Justice Department should drop these politically motivated, election interference efforts against President Trump immediately. Let us come together to END the weaponization of our justice system and Make America Great Again!” he said.
Cheung was referring to the assassination attempt against Trump at a Pennsylvania campaign rally days earlier.
Fox News Digital’s Bill Mears contributed to this report.
