 Smith, of course, is planning on appealing the decision. If it gets to the Supreme Court, you'll probably lose. Cannon wrote, the superseding indictment is dismissed because special counsel Smith's appointment violates the appointments clause of the United States Constitution, which has to be by the Senate. The judge ruled that no federal statute cited by the judge authorized the appointment of special counsel Jack Smith by the attorney general, meaning he had no authority to prosecute the case.