Federal prosecutors began their bid to resurrect the moribund classified documents case against former President Donald Trump today, telling an appeals court in Atlanta that the trial judge had improperly thrown out the charges.

In a filing to the U.S. Court of Appeals for the 11th Circuit, the prosecutors argued that the judge, Aileen Cannon, erred last month when she handed down a bombshell ruling that dismissed the case on the grounds that Jack Smith, the special counsel who brought it, had been appointed to his job illegally.

The ruling by Cannon, who was placed on the bench by Trump, stunned many legal experts for the way that it upended 25 years of Justice Department practice and flew in the face of previous court decisions about the appointments of special prosecutors reaching back to the Watergate era.

Issued on the first day of the Republican National Convention, where Trump formally accepted his party’s presidential nomination, Cannon’s ruling also gave him a major legal victory at an auspicious political moment.

Smith’s appellate brief today was merely the start of a legal battle that may end up at the Supreme Court and is likely to drag on until well after the election in November.

Should Trump win the election, he would have the power to fire Smith and could order the Justice Department to drop the appeal. Should he lose, the appeals process will determine whether he can still go to trial on the charges.

In their filing, Smith’s deputies told a three-judge panel of the appeals court that Cannon had committed an error when she ruled that no specific federal statute authorized the appointment of special counsels such as Smith or gave them the “prosecutorial power” that they have wielded for 25 years. The prosecutors pointed to four current statutes that they believe give the attorney general the authority to name special counsels.

“The district court’s contrary view conflicts with an otherwise unbroken course of decisions, including by the Supreme Court, that the attorney general has such authority,” the prosecutors wrote, “and it is at odds with widespread and longstanding appointment practices in the Department of Justice and across the government.”

The classified documents case, which was being heard in U.S. District Court in Fort Pierce, Florida, before Cannon threw it out, had once seemed to be the most straightforward of the four criminal prosecutions Trump has faced in the past two years.

He was charged in June of last year with illegally holding on to a trove of classified national security materials after leaving office and then obstructing government efforts to retrieve them along with two co-defendants, Walt Nauta and Carlos De Oliveira, who worked for him at Mar-a-Lago, his private club and residence in Florida.

Since 1999, the appointment of special counsels has been governed by internal Justice Department regulations traditionally believed to have been based on at least four federal laws laying out the structure of the department and the powers of the attorney general.

That practice was adopted after Congress permitted the Independent Counsel Act, a law that specifically authorized and governed a different type of independent prosecutor, to lapse after the Whitewater investigation into President Bill Clinton.

But Cannon rejected that tradition, ruling that none of the statutes governing the conduct of attorneys general actually gave them the authority to appoint special prosecutors such as Smith. She also found that Smith’s appointment was illegal because he had not been named by the president and confirmed by the Senate.

Prosecutors with some measure of independence from the federal officials who appoint them have long been used to conduct sensitive political investigations. The practice reaches back to the days when Confederate leader Jefferson Davis was charged with seditious conspiracy after the Civil War, Smith’s deputies reminded the appeals court.

The prosecutors claimed that Cannon had “erroneously disregarded this history as ‘spotty’ or ‘ad hoc’” and paid too much attention to the minor iterations in the rules that have governed independent prosecutors over the decades.

Smith’s team also expressed concern that Cannon’s refusal to recognize the validity of the way in which he got his job could “call into question hundreds of appointments throughout the executive branch.” And that, they wrote, “could jeopardize the longstanding operation of the Justice Department.”

Cannon based her decision to toss out the documents case on the appointments clause of the Constitution. The clause requires presidential nomination and Senate confirmation for all principal officers of the government but allows so-called “inferior officers” to be put in place by leaders of federal departments, including the attorney general, under the guidance of specific laws.

Smith’s deputies told the appeals court that Cannon had made a mistake when she found that there were no laws that specifically authorized Attorney General Merrick Garland to name Smith to the post of special counsel in November 2022. Smith was given the job of investigating allegations that Trump had illegally held on to classified documents after leaving office and separate accusations that he had plotted to overturn the 2020 election.

In seeking to persuade the appeals court, Smith’s team pointed primarily to a Supreme Court case, United States v. Nixon, which found that the attorney general had the statutory power to appoint a special prosecutor to investigate the Watergate scandal in the early 1970s.

In her dismissal order, Cannon took the position that the Supreme Court’s finding about the Watergate special counsel was a “nonbinding” aspect of the ruling, which largely focused on the separate issue of whether President Richard Nixon had to comply with a subpoena in the broader inquiry.

While the appellate brief by Smith’s team was chiefly designed to bring back the criminal charges against Trump, it also looked beyond the classified documents case to the long-term health of the Justice Department. Prosecutors worried that there could be devastating consequences to the department if Cannon’s findings were left unchallenged.

“If the attorney general lacks the power to appoint inferior officers,” they wrote, “that conclusion would invalidate the appointment of every member of the department who exercises significant authority and occupies a continuing office, other than the few that are specifically identified in statute.”

This article originally appeared in The New York Times.

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