What arguments has the Justice Department made in its appeal of Judge Cannon’s dismissal?
Executive summary
The Justice Department’s appeal of Judge Aileen Cannon’s dismissal argues that her ruling is inconsistent with long‑standing DOJ appointment practices and precedent, would eviscerate routine executive‑branch functions if allowed to stand, and should be reversed by the 11th Circuit to restore the indictment filed by Special Counsel Jack Smith [1] [2] [3].
1. DOJ frames Cannon’s holding as an outlier at odds with decades of practice
In its appeal the Department of Justice tells the 11th Circuit that Cannon’s conclusion — that Attorney General Merrick Garland lacked authority to appoint Smith as special counsel — departs from “widespread and longstanding appointment practices” at the Justice Department and from precedents that have routinely upheld special‑counsel appointments, a line of authority the DOJ emphasizes to paint Cannon as an outlier [1] [2] [4].
2. The department warns of catastrophic practical consequences for government operations
DOJ briefs explicitly argue that Cannon’s reasoning would reach far beyond this prosecution and could “threaten to gut” essential functions across the federal government — including military, Treasury and other agencies — because many executive tasks rely on delegated, independent prosecutors and officials whose authority would be cast into doubt by Cannon’s holding [3] [4].
3. Appeal leans on statutory history and prior Supreme Court rulings
The appeal points to statutory authority and historic precedent — including a 50‑year‑old Supreme Court opinion involving President Nixon that affirmed the government’s ability to appoint independent prosecutors — and tells judges the uniform conclusion of earlier courts is that the Attorney General may lawfully authorize a special counsel like Smith, a theme DOJ uses to argue for reversal [2] [4] [5].
4. DOJ stresses that Cannon’s factual labels (e.g., “private citizen”) are legally stale
Prosecutors push back on Cannon’s characterization of Smith as a “private citizen” supervising prosecutions, calling that framing more than 150 years out of date and arguing the district court misapplied history and precedent in finding Smith’s appointment unconstitutional [6] [1].
5. Strategic choices: DOJ sought reversal but did not ask to remove Cannon from the case
While seeking to reinstate the indictment, the DOJ’s appeal stopped short of asking the appellate court to reassign or remove Judge Cannon, instead urging reversal of the legal conclusion and leaving reassignment as a possible later step if the appeals court so chose [1] [7]. That calibrated approach reflects prosecutors’ focus on legal error rather than immediate judge‑removal remedies [7].
6. Counterarguments and the likely path forward highlighted by DOJ’s filing
DOJ acknowledges there are competing views — some judges and commentators have found Cannon’s reasoning persuasive or flagged similar separation‑of‑powers questions — but argues that any such doubts are better resolved by reversing the district court and restoring the indictment, a result DOJ says is necessary to prevent destabilizing effects on the executive branch and to keep the prosecution governed by established law [8] [2] [9]. The appeal also signals the matter could eventually reach the Supreme Court if the 11th Circuit does not resolve the dispute, a possibility DOJ implicitly accepts by framing the legal issues as nationwide and consequential [2] [5].