Special counsel Jack Smith urged an appeals court Monday to reverse a federal judge’s surprise dismissal of former President Donald Trump’s classified documents case, writing the lower court’s decision to toss the charges “deviated” from legal precedent and “took inadequate account” of history.

Last month, U.S. District Judge Aileen Cannon last month threw out the case against Trump, aide Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira that charged them with unlawfully retaining classified documents taken from his time in the White House and then seeking to obstruct the government’s efforts to retrieve them. Cannon found that Smith’s appointment as special counsel violated the Constitution’s Appointments Clause, dismissing the indictment against Trump. Trump has pleaded not guilty to all charges.

Assistant Special Counsel James Pearce, a member of Smith’s team, wrote in a brief filed with the 11th U.S. Circuit Court of Appeals: “The Attorney General validly appointed the Special Counsel, who is also properly funded. 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.” In their filing Monday, Smith said Cannon’s ruling “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.”  Trump has until Sept. 26 to submit a response to the special counsel’s arguments.

Cannon’s ruling centered around arguments that Smith’s prosecution of Trump was illegitimate because, in her determination, Smith was unlawfully appointed by Attorney General Merrick Garland to his position as special counsel because he was never confirmed to his post by the U.S. Senate.

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