Trump's Response to Jack Smith's 11th Circuit Appeal

It's here, and none of it is surprising. This past summer, Jack Smith took Judge Cannon to the 11th Circuit for her improper dismissal of the classified documents case. This is Trump's response.

Finally, after a 30 day delay, Donald Trump has filed his response to Jack Smith’s appeal to the 11th Circuit. Three months ago, Judge Cannon dismissed the Espionage and Obstruction of Justice case against Donald Trump on the ground that Jack Smith was appointed and funded improperly - despite a long history of Special Counsel challenges. She’s the only one in history to accept the decades old argument, and Jack Smith appealed her dismissal to the 11th Circuit.

Jack Smith has NOT asked for the Circuit Court to remove her and reassign the case to a different judge, but two Amici filed briefs in support of her recusal in this case, and the 11th Circuit can reassign the case Sua Sponte - meaning they don’t need Jack Smith to ask. There’s pretty good precedent for removal, but it is a long shot, and in a recent case asking her to recuse - the Routh assassination attempt case - the government opposed. I don’t think that opposition will have any impact on the 11th Circuit’s consideration of the Amici in the Florida case, though. That’s based on a piece by Roger Parloff for Lawfare which you can read here, or you can hear Andy McCabe and I cover this view on tomorrow’s episode of the Jack podcast.

In any case, Jack Smith filed his appellate brief a couple of months ago, and it was well-reasoned providing loads of precedent (Nixon, for example) and backed by the four statutes mentioned in Merrick Garland’s appointment memo: Title 28 USC §§ 509, 510, 515, and 533. The same statutes - passed by Congress, that have governed the Special Counsel appointments for Ken Starr, John Durham, Robert Hur, and every other Special and Independent Counsel going back decades. Cannon is the first judge not to accept these laws at face value.

Just this past week, Trump asked Judge Chutkan in DC for permission to file a motion to dismiss for the same reasons - though in his motion for leave, he made his arguments and even asked for injunctive relief. Since it’s way past time in the DC case to file pre-trial motions, he needs permission first. But he basically asked for permission to make his argument WHILE also making his argument AND asking Judge Chutkan to defund Jack Smith. That filing, which Andy and I cover in detail on tomorrow’s Jack podcast, is pretty identical to the arguments he’s making here to the 11th circuit.

As you know, I’m not a lawyer, but I’m pretty sure the appeals courts can’t take any new arguments, and only base their decisions on briefings in the lower court. Despite that, Trump opens his response with some new evidence - which is also immaterial. Namely, that Joe Biden recently said “lock him up” (when he actually meant “lock him out”), but regardless - Trump is arguing that Jack Smith is taking orders from Joe Biden, while simultaneously arguing he’s not an inferior officer and is therefore “too independent.”

So let’s go over some of the stand out parts of his filing. First, that part about the “lock him up” business - which is rich considering his “lock her up” chants about Hillary after the DoJ broke its own policy when Comey announced the investigation into her just days before the 2016 election.

There is not, and never has been, a basis for Jack Smith’s unlawful crusade against President Trump. For almost two years, Smith has operated unlawfully, backed by a largely unscrutinized blank check drawn on taxpayer dollars. More than $36 million has been spent unjustly targeting the leading candidate in the 2024 Presidential election, President Trump, through unprecedented encroachments on Executive power, with President Biden wrongly and inappropriately urging to “lock him up” only days before the filing of this brief as part of the election-interference strategy.

First, this appeal has nothing to do with Trump’s claims that the prosecution is selective or vindictive, nor does it have to do with Biden’s misapplied rhetoric. He does mention the funding of Special Counsel, but Cannon didn’t rule on that part of the motion to dismiss because she had enough to toss the case on the appointment alone.

So right off the bat, not a single mention of inappropriate appointment concerns in an appeal about Jack Smith being inappropriately appointed. BRILLIANT!

Next up, he quotes a Scalia DISSENT to support his argument. So hey, here’s a case that was lost but one of the guys disagreed and we agree with him so we win! A reminder that this whole thing was kicked off by Clarence’s wildly inappropriate and unusual missive in his concurrence on presidential immunity this past July. But at least that was a concurrence.

“Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J., dissenting). Smith’s unlawful appointment and conduct perpetuate all the evils that Justice Scalia’s prophetic Morrison dissent predicted.

Here, Trump raises Smith’s conduct - again not at issue in this case. Trump already moved to dismiss based on selective and vindictive prosecution and lost. There’s no reason to raise it here in this response, and I doubt the 11th Circuit will consider it. But keep in mind, these filings are little more than an opportunity for Trump to air his political grievances, and I imagine the judges in the 11th Circuit will point that out. This appeal is about whether Judge Cannon appropriately dismissed the case based on the appointment of Jack Smith - in other words - whether Jack Smith was appointed properly. That’s it. But if you give Trump a chance to talk, he’ll bring up everything. I’m surprised this brief doesn’t mention immigration.

Next up, Trump says:

The Appointments Clause requires that officers be appointed “by Law.” No statute supports Smith’s appointment.

The problem here is that Jack Smith was appointed “by law.” Specifically Title 28 §§ 509, 510, 515 and 533. But I digress. So let’s look at Trump’s arguments about why he doesn’t think those laws count here. Trump says:

28 U.S.C. §§ 509-510 are “generic provisions concerning the functions of the Attorney General . . . .” Both paragraphs of 28 U.S.C. § 515 refer to attorneys from offices “created by some other law.” Id. at 2351. 28 U.S.C. § 533(1) relates to FBI personnel, only, and “would be a curious place for Congress to hide the creation of an office for a Special Counsel.” None of these statutes creates an independent source of appointment authority, much less clearly so.

In reality, any one of these four statutes would do. Let’s look at what Marty Lederman says for Just Security:

Section 509 provides that DOJ functions “are vested in the Attorney General,” even where another statute specifically assigns a particular function to other DOJ officials (such as 28 U.S.C. § 547(1), which authorizes U.S. Attorneys to prosecute offenses against the United States). Therefore, the Attorney General himself may supervise a criminal investigation and prosecution.

Section 510 provides the Attorney General a virtually unlimited power to delegate those authorities. It provides that the Attorney General “may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.”

And while Trump argues that Jack Smith was not approved by the Senate, for the past 17 years the Attorney General has exercised his Section 510 delegation authority to assign supervision of criminal investigations and prosecutions involving national-security-related offenses to the DOJ National Security Division (NSD), even though Congress has not vested the Assistant Attorney General for NSD with any statutory authority to prosecute criminal cases. But Donald has no problem with any of that, of course.

And here comes the entire crux of Cannon’s argument for dismissal: that 510 allows Garland to delegate to existing DoJ employees. And she sees that Merrick Garland appointing Jack Smith is against the law because he wasn’t an existing DoJ employee. So If he had appointed him to the DoJ, waiting one second and then made him Special Counsel, that would be totally okay. Which is just stupid - and not supported by precedent or law. Marty Lederman writes:

There is, however, no basis for assuming Congress has required such a two-step dance. Indeed, there would be no reason for Congress to have imposed such a requirement, which would serve no useful purpose and that would have contravened a longstanding practice of hiring individuals from outside DOJ to commence employment at DOJ in order to handle a particular case. Section 510 empowers the Attorney General to delegate his functions—including criminal-law investigation and prosecution—to an incoming DOJ employee who has been hired for the specific purpose of exercising that delegated authority. As noted below, that has happened quite frequently.

So 509 and 510 are enough to legally and lawfully appoint a special counsel. But Merrick Garland (and every other attorney general ever) adds §515. 515 adds support for appointing Special Counsel and says:

The Attorney General or any other officer of the Department of Justice, or 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, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.

Seems pretty cut a dried.

BUT WAIT! Check out 515(b):

“[e]ach attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law”

That “shall take the oath” bit indicates they came from outside the government. Kinda kills Trump and Cannon’s argument that Special Counsel can’t come from outside the government. In fact, the special counsel regs say they have to.

Finally, let’s read §533(1):

“[t]he Attorney General may appoint officials— … to detect and prosecute crimes against the United States.” Attorneys General did not invoke Section 533(1) for special counsel appointments before Attorney General Garland included it in his 2022 appointment memorandum for Jack Smith. Special Prosecutor Leon Jaworski relied upon it, however, along with other statutes, in his Supreme Court brief in the Nixon tapes case. And in the Court’s decision in that case, Chief Justice Burger identified Section 533, together with Sections 509, 510 and 515, as establishing that Congress has vested the Attorney General with “the power to appoint subordinate officers”—including the special prosecutor there, Jaworski—“to assist him in the discharge of his duties.”

Marty Lederman writes:

Judge Cannon insists that Section 533(1)’s reference to the appointment of “officials” to “detect and prosecute crimes against the United States” does not authorize the Attorney General to appoint someone to “prosecute crimes” if that person would, by virtue of the assignment, be an “officer” for purposes of the Article II’s Appointments Clause.

That presumes that Garland didn’t create an office for Jack Smith to occupy, so that argument falls apart, too.

Trump’s final major argument is that “Nixon is dicta”, and Judge Cannon agreed. So what’s that about?

Judge Burger wrote for SCOTUS in 1973: Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. … It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. The Nixon court cited 28 U.S.C. §§ 509, 510, 515 and 533. And it added in footnote 8 that Acting Attorney General Bork issued the regulation establishing the Office of Watergate Special Prosecution Force “pursuant to his statutory authority.” (Lederman)

Cannon and Trump say this is “dicta” - a comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation. And since Nixon didn’t oppose Bork’s appointment of Jaworski, that statement isn’t binding. The DC Circuit has ruled that the statement is binding on lower courts, and I imagine the 11th Circuit will agree. Nixon didn’t contest it because that would be dumb. Leave it to Trump to do the dumb thing.

I think the 11th Circuit will reverse Cannon’s dismissal, causing Trump to take this case to the Supreme Court. In any normal time, the fact that the two circuits: DC and 11th, are in agreement, would lead the Supreme Court to refuse to hear the case. But what if this corrupt court says “WE DON’T CARE! THIS IS A SERIOUS QUESTION AND WE NEED TO CREATE A RULE FOR THE AGES!” like the did in the Immunity case (there was no reason for them to take that case either.)

We could be looking at a corrupt Supreme Court creating new requirements for appointing Special Counsel, or perhaps simply creating a rule that presidents are special and putting additional requirements on DoJ for investigating former presidents as they did in the immunity case.

You can read the full Trump opposition here. And the Marty Lederman piece for Just Security is here.

Thanks for reading, and please share if you’re so inclined!

~AG