Special counsel Jack Smith on Monday appealed federal Judge Aileen Cannon’s ruling dismissing his classified records Mar-a-Lago case against former President Donald Trump, arguing that his appointment is valid. 

Cannon, the U.S. District Judge for the Southern District of Florida, last month dismissed Smith’s case against Trump, ruling that it violated ‘the Appointments Clause of the United States Constitution.’ 

Cannon said Smith’s appointment of special counsel was unconstitutional. 

But Smith appealed Monday. 

‘The Attorney General validly appointed the Special Counsel, who is also properly funded,’ the filing states. ‘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.’ 

Smith also argues that he was ‘properly funded through the congressionally enacted ‘permanent indefinite appropriation’ to ‘pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to” U.S. code. 

The Appointments Clause says, ‘Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States be appointed by the President subject to the advice and consent of the Senate, although Congress may vest the appointment of inferior officers in the President alone, in the Courts of Law, or in the Heads of Departments.’ 

Smith, however, was never confirmed by the Senate.

‘Upon careful study of the foundational challenges raised in the Motion, the Court is convinced that Special Counsel’s Smith’s prosecution of this action breaches two structural cornerstones of our constitutional scheme – the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law,’ Cannon wrote in her decision last month. 

‘The Framers gave Congress a pivotal role in the appointment of principal and inferior officers. That role cannot be usurped by the Executive Branch or diffused elsewhere – whether in this case or in another case, whether in times of heightened national need or not,’ she continued.

‘In the case of inferior officers, that means that Congress is empowered to decide if it wishes to vest appointment power in a Head of Department, and indeed, Congress has proven itself quite capable of doing so in many other statutory contexts. But it plainly did not do so here, despite the Special Counsel’s strained statutory readings,’ Cannon added.

‘In the end, it seems the Executive’s growing comfort in appointing ‘regulatory’ special counsels in the more recent era has followed an ad hoc pattern with little judicial scrutiny,’ she said.

Trump had faced charges stemming from Smith’s investigation into his possession of classified materials at his Mar-a-Lago residence. He pleaded not guilty to all 37 felony counts from Smith’s probe, including willful retention of national defense information, conspiracy to obstruct justice and false statements. Trump pleaded not guilty to all charges. 

This is a developing story. Please check back for updates. 

Vice President Kamala Harris issued a statement Monday morning honoring the 13 U.S. service members who were killed during the botched withdrawal from Afghanistan three years ago, but has been conspicuously absent from public memorials or events on the anniversary of their deaths. 

Harris released a statement early Monday morning naming the 13 U.S. service members who were killed during the terrorist attack at Abbey Gate outside Kabul’s Hamid Karzai International Airport on Aug. 26, 2021, mourning their deaths and calling on Americans to ‘come together as one nation to honor those who made the ultimate sacrifice three years ago.’  

‘Today and everyday, I mourn and honor them. My prayers are with their families and loved ones.  My heart breaks for their pain and their loss.  These 13 devoted patriots represent the best of America, putting our beloved nation and their fellow Americans above themselves and deploying into danger to keep their fellow citizens safe,’ Harris wrote in the statement. 

Harris also posted her statement to her vice president X account on Monday. 

Fox News Digital reached out to both Harris’ campaign and her vice presidential office asking if she had plans to honor the service members during live events, whether public or private, but did not receive responses. 

The anniversary of the tragic military deaths comes after Harris wrapped up in Chicago at the Democratic National Convention last week, where she officially accepted the Democratic Party’s nomination for the Oval Office after President Biden dropped out of the race last month amid mounting concern over his mental acuity. Harris and her running mate, Minnesota Gov. Tim Walz, are slated to visit Georgia next week in their first public event following the DNC, NBC News reported. 

Biden also honored the 13 fallen U.S. service members in an early morning statement. The president is in Delaware at his beach home this week, and has no public events scheduled, Fox Digital reported earlier Monday. 

‘These 13 Americans—and the many more that were wounded—were patriots in the highest sense. Some were born the year the war in Afghanistan started. Some were on their second or third tour. But all raised their hand to serve a cause greater than themselves—risking their own safety for the safety of their fellow Americans, Allies, and Afghan partners. They embodied the very best of who we are as a nation: brave, committed, selfless. And we owe them and their families a sacred debt we will never be able to fully repay, but will never cease working to fulfill,’ Biden wrote in his statement, which also included the 13 names of the service members. 

During her acceptance speech last week, Harris touted her foreign policy record and support of veterans, but left out any mention of the Biden-Harris administration’s botched withdrawal from Afghanistan.

‘I will never hesitate to take whatever action is necessary to defend our forces and our interests against Iran and Iran-backed terrorists. And I will not cozy up to tyrants and dictators like Kim Jong Un, who are rooting for Trump. Because they know he is easy to manipulate with flattery and favors. They know Trump won’t hold autocrats accountable — because he wants to be an autocrat,’ Harris touted from the DNC’s stage in Chicago Thursday evening.

‘As president, I will never waver in defense of America’s security and ideals. Because, in the enduring struggle between democracy and tyranny, I know where I stand — and where the United States of America belongs.’

In addition to the deaths of the 13 U.S. service members defending the Kabul airport during the botched withdrawal, hundreds of Americans and tens of thousands of Afghan allies were left in the country under Taliban rule. Critics such as Sen. Ted Cruz, R-Texas, said the withdrawal paved the way for adversaries such as Russia to invade Ukraine. 

The Taliban ultimately claimed control of Afghanistan following the withdrawal. 

Harris previously confirmed that she was the ‘last person in the room’ with Biden before he made the decision to withdraw and also told the media that she was ‘comfortable’ with the operation that ultimately turned deadly and chaotic.

On the Republican side of the presidential race, former President Donald Trump has repeatedly honored the fallen service members, including families of those killed during the withdrawal, taking the RNC’s stage last month in Milwaukee for 20 minutes in an emotional remembrance. The families also criticized Biden in their remarks from the RNC’s stage, calling on the president to apologize to them. 

‘Look at our faces. Look at our pain, and our heartbreak. And look at our rage. [The Afghanistan withdrawal] was not an extraordinary success,’ Cheryl Juels, the aunt of Marine Sgt. Nicole Gee, said. ‘Joe Biden owes the men and women who served in Afghanistan a debt of gratitude, and an apology.’

On the anniversary Monday, Trump traveled to Arlington National Cemetery in Virginia for a wreath laying ceremony at the Tomb of the Unknown Soldier, and was again joined by the families of those killed in Afghanistan three years ago. 

The 45h president was seen listening to taps, laying the wreath at the tomb, and meeting with family members during the solemn ceremony. 

Trump has consistently slammed the Biden administration for its botched withdrawal from the country in 2021, calling it the ‘most embarrassing moment’ in U.S. history in a Truth Social post on Monday. 

‘​​This is the third anniversary of the BOTCHED Afghanistan withdrawal, the most EMBARRASSING moment in the history of our Country. Gross Incompetence – 13 DEAD American soldiers, hundreds of people wounded and dead, AMERICANS and BILLIONS OF DOLLARS OF MILITARY EQUIPMENT LEFT BEHIND. You don’t take our soldiers out first, you take them out LAST, when all else is successfully done. Russia then invaded Ukraine, Israel was attacked, and the USA became, and is, a laughing stock all over the World,’ Trump posted on Truth Social. 

White House national security communications adviser John Kirby fielded questions from the media regarding the Afghanistan withdrawal on Monday, including a reporter asking why Biden and Harris felt they ‘did not need to host or attend public events in the way that former President Donald Trump did today.’

‘You don’t have to look very far at the president and the first lady’s track record and the vice president’s track record, over the last three and a half years to see how deeply devoted they are to the men and women of our military and to our veterans and to their families. Everything from Joining Forces to the Pact Act,’ Kirby responded. 

He added that Trump was personally invited by the families to join them at Arlington National Cemetery, and that there are ‘many ways’ for U.S. leaders to honor the fallen service members that does not include ‘a lot of fanfare.’ 

‘Another way is to continue to work. Maybe not with a lot of fanfare. Maybe not with a lot of public attention. Maybe not with TV cameras, but to work with might and main every single day to make sure that the families of those, of the fallen and of those who were injured and wounded, not just at Abbey gate, but over the course of the 20 some odd years that we were in Afghanistan, have the support that they need,’ he said. 

Top Republicans are slamming Vice President Kamala Harris for admitting she was ‘the last person in the room’ when President Biden made the decision to abruptly evacuate all U.S. troops from Afghanistan.

The criticism comes on the anniversary of the fatal suicide bombing that occurred at Abbey Gate, located outside Kabul’s Hamid Karazai International Airport, which ultimately led to the deaths of 13 U.S. service members and injured others. 

Harris’ comments about her involvement in the decision to evacuate the war-torn region came ahead of the tragic attack, during an April 2021 interview with CNN’s Dana Bash. ‘He just made a really big decision – Afghanistan. Were you the last person in the room?’ Bash asked Harris. ‘Yes,’ she replied, adding that she was ‘comfortable’ with the president’s decision and admired his courage for making the call.

This year marks the third anniversary of the tragic event and certain Republicans did not hold back on their criticism of the now-Democratic candidate for president’s remarks, with some arguing it shows Harris’ involvement in the disastrous decision.

‘It’s morally abhorrent that Vice President Harris bragged about being the ‘last person in the room’ for Biden’s Afghanistan withdrawal. The American people deserve a full answer on her role in this disaster,’ former Secretary of State Mike Pompeo, wrote on X Monday. 

Pompeo included video of the interview in his post, as did House Speaker Mike Johnson, R-La., in his own post commemorating the three-year anniversary. In the video, Johnson referred to the Afghanistan withdrawal as ‘disastrous,’ and honored, by name, all those service members lost. 

But North Dakota Gov. Doug Burgum, who also ran for president, was more direct in his criticisms of Harris. He said on Fox News Monday morning that the withdrawal from Afghanistan needs not just be pinned on Biden, but on Harris, as well.

‘We got to pin the rose not just on Biden, but on Harris,’ Burgum told Fox News. ‘She brags about being the last person in the room with Biden when they made this decision… they made it for date certain and that date certain was chosen for political reasons.’

‘This is why we need President Trump back as our commander in chief – somebody who understands how the world works and understands what we need to do to keep… the world safe.’

Kelly Loeffler, a former senator from Georgia, argued Monday that while ‘Harris has overseen many failures,’ her worst and ‘most tragic’ one ‘was being ‘the last person in the room’ to authorize the chaotic exit from Afghanistan.’ Dave McCormick, the Republican Senate candidate from Pennsylvania, blasted Harris for being ‘proud to be the last person in the room’ amid a decision that resulted in the deaths of 13 U.S. service members.

In addition to Harris’ ‘last person in the room remarks,’ some Republicans also took issue Monday with her failure to speak the names of the 13 U.S. service members lost during the suicide bombing at Kabul airport three years ago.

‘It was the deadliest day for Americans in Afghanistan in over a decade and, to this day, neither Biden nor Harris have said the names of our fallen soldiers,’ Rep. Nicole Malliotakis, R-N.Y., wrote on X Monday morning.

Meanwhile, the Trump campaign released a video on Monday’s anniversary highlighting all the Gold Star families who lost loved ones from the Kabul airport bombing. ‘To this day, Kamala Harris has never mentioned these fallen soldiers’ names,’ the video is captioned.

Fox News Digital reached out to the Harris campaign for comment but did not receive a response.

The Trump campaign is calling out a potential conflict of interest ahead of the first presidential debate. 

The Trump campaign told Fox News Digital that Karen Dunn, who is part of the team prepping Vice President Kamala Harris for the Sept. 10 showdown, is simultaneously working as Google’s lead defense attorney in the Biden-Harris administration’s lawsuit against the tech giant. 

That lawsuit, United States v. Google LLC is the Biden-Harris administration’s antitrust lawsuit targeting Google’s digital advertising practices. The trial is set to begin Sept. 9 — a day before the first presidential debate. 

Dunn, who is Google’s outside counsel through law firm Paul, Weiss, Rifkind, Wharton & Garrison, is listed in the lawsuit as a ‘lead attorney.’ 

Dunn also advised Harris ahead of her 2020 vice presidential debate against then-Vice President Mike Pence. 

‘Kamala Harris will never stand up to Big Tech because she’s being coached on what to say in the debates by Google’s top lawyer,’ Trump campaign senior adviser Tim Murtaugh told Fox News Digital. ‘Think about how outrageous it is — their administration is suing Google, but Harris is taking political advice from the defendant’s lawyer.’ 

Murtaugh said, ‘any first year law student knows that’s a conflict of interest.’ 

‘But it’s not surprising because Big Tech and the Biden-Harris White House have been conspiring to censor and trample the rights of law-abiding citizens since they gained power,’ he said. 

Murtaugh added, ‘They don’t even try to hide their cozy relationship — it’s all been reported by the media — but it is disgusting and dangerous.’ 

Murtaugh pointed to reports by The Washington Post and Bloomberg News last month that said Dunn had joined the newly minted Harris campaign to, again, help with debate prep. 

‘Some prosecutor she is,’ Murtaugh said. ‘She’s being coached by the defendant’s lawyer.’ 

Neither the Harris campaign nor Dunn responded to Fox News Digital’s request for comment. 

The revelations also come after Google came under scrutiny following the assassination attempt against former President Donald Trump. Google’s autocomplete search results did not initially register the July 13 assassination attempt against Trump. 

Google admitted that it initially blocked and eliminated search prompts for the assassination attempt against Trump, saying they were prohibited by design and part of the company’s policy to prevent search results for ‘hypothetical political violence against current figures.’ 

‘We do not allow predictions that can be interpreted as accusations against individuals or groups of serious malevolent acts, where there is a lack of well-established or expert supporting evidence,’ he said. 

Meanwhile, the Harris campaign is clashing with the Trump campaign over debate rules for the Sept. 10 debate. The vice president’s campaign is seeking to have microphones live throughout the event, despite the fact that the original agreement had microphones muted unless the candidate was directed to speak. 

‘We have told ABC and other networks seeking to host a possible October debate that we believe both candidates’ mics should be live throughout the full broadcast,’ Harris campaign senior adviser for communications Brian Fallon said in a statement Monday. 

‘Our understanding is that Trump’s handlers prefer the muted microphone because they don’t think their candidate can act presidential for 90 minutes on his own,’ Fallon said. ‘We suspect Trump’s team has not even told their boss about this dispute because it would be too embarrassing to admit they don’t think he can handle himself against Vice President Harris without the benefit of a mute button.’ 

‘The Vice President is ready to deal with Trump’s constant lies and interruptions in real time. Trump should stop hiding behind the mute button.’ 

However, Trump campaign senior adviser Jason Miller is firing back, telling the Harris campaign, ‘enough with the games,’ and accusing them of trying to ‘get out’ of the debate against the former president. 

‘We accepted the ABC debate under the exact same terms as the CNN debate. The Harris camp, after having already agreed to the CNN rules, asked for a seated debate, with notes, and opening statements. We said no changes to the agreed upon rules,’ Miller said in a statement. ‘If Kamala Harris isn’t smart enough to repeat the messaging points her handlers want her to memorize, that’s their problem.’ 

Miller said this is a ‘pattern’ for the Harris campaign.

‘They won’t allow Harris to do interviews, they won’t allow her to do press conferences, and now they want to give her a cheat-sheet for the debate,’ Miller said. ‘My guess is that they’re looking for a way to get out of any debate with President Trump.’ 

He added, ‘Regardless, there’s no way Harris is ready to be Commander in Chief.’ 

Regarding Harris’ debate prep with Dunn, Murtaugh chimed in. 

‘Isn’t it funny that the Harris camp is starting to complain about debate rules again, now that they’ve actually begun to prep their candidate with Karen Dunn’s help?’ Murtaugh told Fox News Digital. ‘I guess Google’s lawyer sees something they don’t like, and now they’re panicking.’