Trump Special Counsel Asks Appeals Court to Revive Records Case

US prosecutors are seeking to reinstate the criminal case charging Donald Trump with mishandling classified documents and obstruction, arguing a Florida judge was wrong to toss out the indictment this summer.

Less than three months before US voters decide if Trump should win a second term as president, Special Counsel Jack Smith’s office on Monday asked an appeals court to reverse US District Judge Aileen Cannon’s July order. Prosecutors say Cannon erred in finding Smith’s appointment was unconstitutional.

Cannon, who was appointed to the federal court in south Florida by Trump in 2020, held that Congress hadn’t clearly given Attorney General Merrick Garland the authority to appoint Smith, which meant the entire prosecution was unlawful. She also found that the use of federal funds to pay for Smith’s work violated the US Constitution.

Cannon’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,” prosecutors argued.

Prosecutors haven’t asked to fast-track the appeal ahead of the Nov. 5 presidential contest. Trump is due to respond to the government’s brief in a month, and then the government will get another three weeks to reply. The 11th US Circuit Court of Appeals hasn’t set a hearing date. 

Cannon’s 93-page opinion came more than a year after Trump was originally indicted. The former president was charged with willfully holding onto documents containing sensitive national defense information after he left the White House in January 2021, as well as attempting to obstruct government efforts to investigate and recover the documents. 

A trial was set for May 20 but Cannon postponed it indefinitely, citing the ongoing fights over evidence and the questionable lawfulness of the indictment. 

The Florida case is one of two prosecutions that Smith brought against Trump. In Washington, where Trump is charged with conspiring to obstruct the 2020 presidential election, the special counsel’s office is mulling its next move after the US Supreme Court ruled this summer that he is immune from charges related to his official acts as president.

The Florida case also included charges against Trump’s personal aide and former White House valet Waltine “Walt” Nauta and Carlos De Oliveira, a property manager at Trump’s Mar-a-Lago estate.

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