Signaling something of a continuation of the amici curiae fight over special counsel Jack Smith’s authority that preceded Judge Aileen Cannon’s decision to toss Donald Trump’s Mar-a-Lago classified documents prosecution, the U.S. Court of Appeals for the 11th Circuit on Monday allowed the former Whitewater independent counsel, a law professor, and a legal organization to file a brief saying the dismissal didn’t go far enough.
The 11th Circuit on Monday issued a short order granting the amici curiae (or “friends of the court”) — Robert Ray, the originalist Landmark Legal Foundation, Ray, and law professor Seth Barrett Tillman — permission to file their brief.
Ray, who once took over for Ken Starr in investigating the Clintons and Bill Clinton’s lies about the Monica Lewinsky scandal but ultimately did not indict the former president, later became a lawyer for Trump in the 2020 Ukraine impeachment trial in the U.S. Senate, an impeachment that ended in acquittal just like the Jan. 6 impeachment that followed a year after.
In early October, the amici asserted that their views could be of some “assistance” to the 11th Circuit because Cannon’s dismissal order concluding Smith was unlawfully appointed and unlawfully funded in violation of the Constitution in a few instances cited their supplementary arguments.
While Jack Smith has repeatedly argued that history is on his side, the amici have so far said Cannon “correctly dismissed the indictment” but that the ruling could have and should have been worse for the special counsel.
“The District Court described the ‘historical backdrop’ supporting Smith’s case as ‘spotty.’ The record here is not spotty—it is near-empty,” the brief said. “The District Court understated how weak the historical record is for Smith.”
Read the amicus brief here.
Colin Kalmbacher contributed to this report.
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