Trump cites Biden’s ‘lock him up’ remark in defending Cannon ruling to 11th Circuit
Posted on 10/26/2024
Donald Trump’s lawyers re-upped their argument Friday evening that special counsel Jack Smith was unlawfully appointed, urging an appeals court to uphold a Florida judge’s stunning decision to dismiss criminal charges against the former president for allegedly hoarding classified documents after he left the White House.
The filing was in response to the government’s appeal of U.S. District Judge Aileen M. Cannon’s ruling that the case against the former president should be dropped on the grounds that federal regulations did not allow Attorney General Merrick Garland to appoint Smith without confirmation from the Senate. Smith was not a Justice Department employee at the time of his appointment.
Smith swiftly appealed that decision to the U.S. Court of Appeals for the 11th Circuit in Atlanta. His team argued that Cannon misread the law and said her decision ignored decades of legal precedent and Justice Department practice regarding the appointment of special or independent prosecutors.
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Trump’s team continued to advance its separation-of-powers argument in its filing late Friday night, saying Smith has too much power and too little oversight for someone who was not approved by the Senate. The response forcefully rebuked both Smith’s appointment and the case he has brought against Trump, often using language that meshed the politics of Trump’s current run for president with the legal arguments unfolding in court.
“There is not, and never has been, a basis for Jack Smith’s unlawful crusade against President Trump,” the defense’s response read. “For almost two years, Smith has operated unlawfully, backed by a largely unscrutinized blank check drawn on taxpayer dollars.”
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Trump’s response to the appeal is the next step in prosecutors’ long quest to revive what was considered by many lawyers to be the strongest criminal case against the former president as he again seeks the White House. The special counsel indicted Trump last year on 34 charges, accusing him of repeatedly breaking the law by stashing classified documents at Mar-a-Lago, his Florida home and private club, and obstructing government efforts to retrieve them.
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Trump’s filing to the 11th Circuit largely echoed the legal arguments about special counsel appointments that his lawyers made in asking Cannon to dismiss the case. But the response contained some new political references, citing President Joe Biden’s recent controversial comment about locking up Trump — a statement that Biden quickly clarified as meaning “politically lock him up.”
“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,” Trump’s lawyers wrote.
Oral arguments have not yet been scheduled for the appeal, and the three-judge panel that will hear the arguments has not yet been assigned. It could take months before that panel issues its ruling on whether Cannon was right to toss the case. That ruling, in turn, can be appealed to the Supreme Court.
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Trump, who has been escalating his rhetoric against his perceived enemies on the campaign trail, said this week that if he is elected president, he would move to immediately fire Smith and that he believes the special counsel should be “thrown out of the country.” As president, he could push his Justice Department to drop the appeal of Cannon’s ruling. If he loses, the appeal of Cannon’s decision would likely continue, and the case could be resurrected.
Cannon, a Trump nominee who was confirmed by the Senate in the final weeks of his term in 2020, has already been reversed by the 11th Circuit in this case — at a much earlier stage of the classified-documents investigation. After FBI agents executed a court-approved search warrant and retrieved scores of classified documents from Trump’s home in 2022, Cannon ruled against the Justice Department and imposed an outside legal expert to review some of the evidence. That move was roundly rejected and reversed by the 11th Circuit.
Smith secured a grand jury indictment against Trump in 2023. Before Cannon’s dismissal of the case in July, it had been moving slowly toward a trial in Florida, with both sides engaging in the often long and tedious process of prosecuting a case that involves highly classified government documents. Trump’s lawyers pushed long-shot motions to dismiss the case, and Cannon drew criticism for entertaining many of those requests — even if she ultimately ruled against some.
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Cannon held two days of hearings on Trump’s request to disqualify Smith and toss the case. The motion was considered far-fetched, but it had the backing of some conservative lawyers, who believed that the Justice Department had long overreached by appointing people as special counsels without getting Senate approval.
The argument gained an extra boost when Supreme Court Justice Clarence Thomas wrote in an unrelated decision on presidential immunity that the special counsel’s office needs to be established by Congress and that Smith needed to be confirmed by the Senate. He urged lower courts to explore the issue.
A few weeks later, Cannon cited Thomas’s concurring opinion in her decision to dismiss the case.
Cannon’s decision that the special counsel was unlawfully appointed is not binding beyond her courtroom, and Smith is still overseeing a separate federal election interference case that he brought against Trump in D.C. last year.
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Trump’s lawyers did not initially argue in the D.C. case that Smith was unlawfully appointed. His lawyers have said that is because there are two decisions by the U.S. Court of Appeals for the D.C. Circuit upholding the appointments of an earlier Trump-Russia special counsel, Robert S. Mueller III, and Reagan-era Iran-contra independent counsel Lawrence Walsh.
U.S. District Judge Tanya S. Chutkan — who is overseeing the D.C. election interference case — has said she didn’t find Cannon’s opinion “particularly persuasive.” But she allowed Trump’s team to file a brief this week arguing that she is not bound by those two special counsel decisions in the D.C. Circuit.
The filing was in response to the government’s appeal of U.S. District Judge Aileen M. Cannon’s ruling that the case against the former president should be dropped on the grounds that federal regulations did not allow Attorney General Merrick Garland to appoint Smith without confirmation from the Senate. Smith was not a Justice Department employee at the time of his appointment.
Smith swiftly appealed that decision to the U.S. Court of Appeals for the 11th Circuit in Atlanta. His team argued that Cannon misread the law and said her decision ignored decades of legal precedent and Justice Department practice regarding the appointment of special or independent prosecutors.
Advertisement
Trump’s team continued to advance its separation-of-powers argument in its filing late Friday night, saying Smith has too much power and too little oversight for someone who was not approved by the Senate. The response forcefully rebuked both Smith’s appointment and the case he has brought against Trump, often using language that meshed the politics of Trump’s current run for president with the legal arguments unfolding in court.
“There is not, and never has been, a basis for Jack Smith’s unlawful crusade against President Trump,” the defense’s response read. “For almost two years, Smith has operated unlawfully, backed by a largely unscrutinized blank check drawn on taxpayer dollars.”
Skip to end of carousel
Sign up for The Trump Trials newsletter
Subscribe to The Trump Trials newsletter to get the latest updates on Donald Trump’s four criminal cases in your inbox.
End of carousel
Trump’s response to the appeal is the next step in prosecutors’ long quest to revive what was considered by many lawyers to be the strongest criminal case against the former president as he again seeks the White House. The special counsel indicted Trump last year on 34 charges, accusing him of repeatedly breaking the law by stashing classified documents at Mar-a-Lago, his Florida home and private club, and obstructing government efforts to retrieve them.
Advertisement
Trump’s filing to the 11th Circuit largely echoed the legal arguments about special counsel appointments that his lawyers made in asking Cannon to dismiss the case. But the response contained some new political references, citing President Joe Biden’s recent controversial comment about locking up Trump — a statement that Biden quickly clarified as meaning “politically lock him up.”
“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,” Trump’s lawyers wrote.
Oral arguments have not yet been scheduled for the appeal, and the three-judge panel that will hear the arguments has not yet been assigned. It could take months before that panel issues its ruling on whether Cannon was right to toss the case. That ruling, in turn, can be appealed to the Supreme Court.
Advertisement
Trump, who has been escalating his rhetoric against his perceived enemies on the campaign trail, said this week that if he is elected president, he would move to immediately fire Smith and that he believes the special counsel should be “thrown out of the country.” As president, he could push his Justice Department to drop the appeal of Cannon’s ruling. If he loses, the appeal of Cannon’s decision would likely continue, and the case could be resurrected.
Cannon, a Trump nominee who was confirmed by the Senate in the final weeks of his term in 2020, has already been reversed by the 11th Circuit in this case — at a much earlier stage of the classified-documents investigation. After FBI agents executed a court-approved search warrant and retrieved scores of classified documents from Trump’s home in 2022, Cannon ruled against the Justice Department and imposed an outside legal expert to review some of the evidence. That move was roundly rejected and reversed by the 11th Circuit.
Smith secured a grand jury indictment against Trump in 2023. Before Cannon’s dismissal of the case in July, it had been moving slowly toward a trial in Florida, with both sides engaging in the often long and tedious process of prosecuting a case that involves highly classified government documents. Trump’s lawyers pushed long-shot motions to dismiss the case, and Cannon drew criticism for entertaining many of those requests — even if she ultimately ruled against some.
Advertisement
Cannon held two days of hearings on Trump’s request to disqualify Smith and toss the case. The motion was considered far-fetched, but it had the backing of some conservative lawyers, who believed that the Justice Department had long overreached by appointing people as special counsels without getting Senate approval.
The argument gained an extra boost when Supreme Court Justice Clarence Thomas wrote in an unrelated decision on presidential immunity that the special counsel’s office needs to be established by Congress and that Smith needed to be confirmed by the Senate. He urged lower courts to explore the issue.
A few weeks later, Cannon cited Thomas’s concurring opinion in her decision to dismiss the case.
Cannon’s decision that the special counsel was unlawfully appointed is not binding beyond her courtroom, and Smith is still overseeing a separate federal election interference case that he brought against Trump in D.C. last year.
Advertisement
Trump’s lawyers did not initially argue in the D.C. case that Smith was unlawfully appointed. His lawyers have said that is because there are two decisions by the U.S. Court of Appeals for the D.C. Circuit upholding the appointments of an earlier Trump-Russia special counsel, Robert S. Mueller III, and Reagan-era Iran-contra independent counsel Lawrence Walsh.
U.S. District Judge Tanya S. Chutkan — who is overseeing the D.C. election interference case — has said she didn’t find Cannon’s opinion “particularly persuasive.” But she allowed Trump’s team to file a brief this week arguing that she is not bound by those two special counsel decisions in the D.C. Circuit.
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