Jack Smith appeals dismissal of Mar-a-Lago seized documents case

Smith wrote in the appeal, "The Attorney General validly appointed the Special Counsel, who is also properly funded," Fox News reported. "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."

"The district court’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," Smith wrote. "This Court should reverse."

Judge Cannon wrote in her July ruling that there was not a statute in the US Code that authorized the appointment of Smith as special counsel to conduct the prosecution writing, "None of the statutes cited as legal authority for the appointment— 28 U.S.C. §§ 509, 510, 515, 533—gives the Attorney General broad inferior-officer appointing power or bestows upon him the right to appoint a federal officer with the kind of prosecutorial power wielded by Special Counsel Smith. Nor do the Special Counsel’s strained statutory arguments, appeals to inconsistent history, or reliance on out-of-circuit authority persuade otherwise."

In his appeal, Smith argued 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'" US code. He continued, "The district court’s contrary conclusion depended solely on its erroneous determination that no ‘other law’ supported the Special Counsel’s appointment. Because its premise was wrong, so was its conclusion."

The Appointments Clause states, "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 was never confirmed by the Senate.

Cannon wrote in her ruling, "The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers," but the position of special counsel "effectively usurps that important legislative authority, transferring it to a Head of Department, and in the process threatening the structural liberty inherent in the separation of powers."

She later added, "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. 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. Nor does his appeal to inconsistent 'historical practice’ supplant the absence of textual authorization for his appointment. The same structural emphases resonate in the context of the Appropriation Clause, which 'embodies a fundamental separation of powers principle—subjugating the executive branch to the legislatures power of the purse.'"