Hours after former President Donald Trump vowed to fire special counsel Jack Smith as one of his first moves in office, his lawyers launched a new effort Thursday to have a federal judge throw out Trump’s election interference case by arguing that Smith was illegally funded and appointed.
Utilizing the same argument that got the former president’s classified documents case dismissed earlier this year, Trump’s lawyers urged Judge Tanya Chutkan to dismiss the case that centers on Trump’s illegal effort to remain in power after losing the 2020 election.
“The proposed motion establishes that this unjust case was dead on arrival—unconstitutional even before its inception,” the filing said.
Judge Chutkan, who last month remarked during a court hearing that the argument was not “particularly persuasive,” is unlikely to be receptive to the move, and Trump’s lawyers needed to ask for permission to make their motion because a federal appeals court in Washington D.C. has already rejected the same claim.
In an order earlier this month, Chutkan criticized Trump’s lawyers for “focusing on political rhetoric rather than addressing the legal issues at hand.”
Former President and Republican presidential candidate Donald Trump speaks during a campaign rally at Mullet Arena in Tempe, Arizona, on Oct. 24, 2024.
Rebecca Noble/AFP via Getty Images
In their filing, Trump’s lawyers cited Judge Aileen Cannon’s “thorough and well-reasoned opinion” dismissing the former president’s classified documents case as well as Justice Clarence Thomas concurring opinion in the Supreme Court’s presidential immunity ruling raising “serious questions” about whether U.S. Attorney General Merrick Garland had the authority to appoint Smith.
The filing also seized on President Joe Biden’s “We got to lock him up” remark on Tuesday, alleging without evidence that Biden urged Garland to target Trump.
“In November 2022, the Attorney General violated the Appointments Clause by naming private-citizen Smith to target President Trump, while President Trump was campaigning to take back the Oval Office from the Attorney General’s boss, without a statutory basis for doing so,” the filing said.
Trump’s attack on Smith Thursday was the latest against the special counsel and the Justice Department in their nearly two-year-long investigation into his alleged criminal activity.
Trump last year pleaded not guilty to federal charges of undertaking a “criminal scheme” to overturn the results of the 2020 election in order to remain in power.
Smith subsequently charged Trump in a superseding indictment that was adjusted to respect the Supreme Court’s July ruling that Trump is entitled to immunity from criminal prosecution for official acts undertaken as president — a decision that effectively delayed any potential trial until after the November election.
