In July, U.S. District Judge Aileen Cannon dismissed Special Counsel Jack Smith's classified documents indictment against former President Donald Trump after agreeing with defense arguments that Smith was unlawfully appointed by Attorney General Merrick Garland and unlawfully funded by the Department of Justice.

Special Counsel Smith appealed that decision to the 11th Circuit and asked the appellate court to override Judge Cannon in August, but Trump's defense attorneys have now filed a response and argued that the dismissal should be upheld, according to the Associated Press.

Meanwhile, Trump's attorneys are pressing the same unlawful appointment argument in a Washington D.C. district court to secure the dismissal of Smith's other 2020 election-related criminal indictment against the former president and Republican nominee.

Case dismissed based on unlawful appointment and funding of special counsel

Law & Crime reported that former President Trump's attorneys filed their response brief on Friday to Special Counsel Smith's earlier appeal of Judge Cannon's decision to the 11th Circuit Court and urged the judges to uphold the lower court's ruling to dismiss the classified documents case based on Smith's unlawful appointment and funding.

Trump's attorneys maintained, as Judge Cannon had ruled, that Smith's appointment in November 2022 by AG Garland was unlawful because it was not authorized by any special statute nor had it gone through the normal process of presidential appointment and Senate confirmation.

That argument had been explained at length earlier this year in briefs and oral arguments by a pair of former Republican attorneys general and two eminent legal scholars and was further bolstered by Supreme Court Justice Clarence Thomas' concurrence in the high court's separate opinion in July about presidential immunity, which came about in response to Smith's election-related indictment against the former president.

Dismissal of classified documents case should be affirmed

In the 85-page reply brief, Trump's attorneys wrote, "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," they continued.

"In the most thorough judicial treatment of these issues that exists, the district court explained why Smith’s actions violated the Constitution’s Appointments and Appropriations Clauses and dismissed this case," the brief added. "At least one Supreme Court Justice, two former Attorneys General who administered the laws at issue, and several prominent legal scholars, among others, support the same, correct conclusions."

The brief noted Justice Thomas' "explicit concerns" about Special Counsel Smith's unlawful appointment violating the Constitution's separation of powers and said, "In order to prevent that danger from coming to fruition, this Court should affirm. The Appointments Clause requires that officers be
appointed 'by Law.' No statute supports Smith’s appointment."

"That is why SCO’s brief starts by emphasizing a sentence from Nixon v. United States, that, respectfully, cannot qualify as anything but unreasoned and unpersuasive dictum," the filing added. "Moreover, even if Smith is a valid officer -- which he is not -- he is a principal rather than an inferior officer in light of his lack of supervision and nearly unlimited jurisdiction and tenure. However, he has not received the required Presidential appointment followed by advice and consent from the Senate."

Smith unlawfully granted more authority than lawfully appointed and confirmed U.S. attorneys

In a summary of their argument, Trump's attorneys asserted that none of the cited statutes "authorized the AG to appoint a private citizen as special counsel in order to target a former President, and leading Presidential candidate, by using power that exceeds the authority granted to Presidentially-appointed and Senate-confirmed U.S. Attorneys."

"The dismissal should also be affirmed on the basis that Smith’s role violates the Appointments Clause because he operates as a principal officer without Presidential nomination and Senate confirmation. Smith has operated without the type of oversight and accountability that are hallmarks of inferior officers," the brief continued.

"Unless and until removed, the duration of Smith’s tenure is largely up to him," the defense added. "His expansive jurisdiction exceeds that granted to U.S. Attorneys, who are principal officers, including his ability to operate in multiple districts as well as his ability to use Senate-confirmed U.S. Attorneys as force multipliers by making referrals under the unlawful Appointment Order."