WASHINGTON (AP) — Lawyers for former President Donald Trump told a federal judge Thursday that the election interference case against him should be dismissed, arguing that special counsel Jack Smith was illegally appointed and that his office should be defunded. be discontinued.
The argument echoes one that convinced a Trump-appointed Florida judge, Aileen Cannon, to dismiss a separate case accusing Trump of illegally keeping classified documents at his Mar-a-Lago estate. Smith’s team has appealed the dismissal, calling Cannon’s order contrary to decades of precedent.
In the Washington case, Trump is accused of plotting to overturn the results of the 2020 presidential election ahead of the violent riot on January 6, 2021, at the US Capitol, when his supporters stormed the building.
The Trump argument faces an uphill battle in the election interference case, in which the judge, Tanya Chutkan, said last month that she did not find Cannon’s rationale “particularly compelling.”
At issue is Smith’s appointment to the position of special counsel in November 2022 by Attorney General Merrick Garland. He reached outside the Justice Department to select Smith — then a war crimes prosecutor in The Hague — using the same process for appointing special counsel used by attorneys general in both Democratic and Republican administrations.
Garland, Trump’s lawyers wrote, “violated the Appointments Clause by appointing private citizen Smith as a target for President Trump, while President Trump campaigned to take back the Oval Office from the attorney general’s boss, without any legal basis for it existed.”
They added: “Everything Smith did since the appointment of Attorney General Garland, as President Trump continued his leadership campaign against President Biden and then Vice President Harris, was unlawful and unconstitutional.”
In dismissing the Florida documents case, Cannon concluded that no law authorized Smith’s appointment — and said the appointment was unconstitutional because he was installed directly by the attorney general without Senate confirmation. Her ruling cited an opinion days earlier from Supreme Court Justice Clarence Thomas that cast doubt on the legality of Smith’s appointment.
By contrast, Smith’s team has said there are no fewer than four statutes authorizing his appointment and has warned that Cannon’s ruling, if left in place, could call into question the legitimacy of hundreds of executive branch staff appointments.
Trump’s lawyers in the election case tried to piggyback on the opinions of Cannon and Thomas on Thursday, asking Chutkan for permission to file a formal motion to dismiss the case.
“The proposed motion establishes that this unjust cause was dead on arrival – unconstitutional even before its inception,” they wrote.
In addition, Trump said in an interview with conservative radio host Hugh Hewitt on Thursday that he would fire Smith “within two seconds” of taking office.
He also spoke highly of Cannon, saying, “We had a brave, brilliant judge in Florida. She’s a brilliant judge, by the way. I don’t know her. I never spoke to her. I never spoke to her. But we had a brave and very brilliant judge.”
