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 funding for his office should be cut off.
The argument mirrors the one that persuaded a Trump-appointed judge in Florida, Aileen Cannon, to dismiss a separate case charging Trump with illegally retaining classified documents at his Mar-a-Lago estate. Smith’s team has appealed the dismissal, calling Cannon’s order contrary to decades of precedent.
The Washington case charges Trump with scheming to overturn the results of the 2020 presidential election in the run-up to the violent Jan. 6, 2021, riot at the U.S. Capitol, when his supporters stormed the building.
The Trump argument faces an uphill battle in the election interference case, where the judge, Tanya Chutkan, last month said that she did not find Cannon’s rationale “particularly persuasive.”
At issue is Smith’s November 2022 appointment to the special counsel’s job by Attorney General Merrick Garland. He reached outside the Justice Department to select Smith — at the time a war crimes prosecutor in the Hague — following the same special counsel appointments process used by attorney generals in both Democratic and Republican administrations.
Garland, Trump’s lawyers wrote, “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.”
They added: “Everything that Smith did since Attorney General Garland’s appointment, as President Trump continued his leading campaign against President Biden and then Vice President Harris, was unlawful and unconstitutional.”
In dismissing the documents case in Florida, Cannon concluded that no statute permitted Smith’s appointment — and said the appointment was unconstitutional because he was installed directly by the attorney general without receiving 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.
Smith’s team, by contrast, has said there are no fewer than four statutes that authorized his appointment and has warned that Cannon’s ruling, if permitted to stand, could call into question the legitimacy of hundreds of personnel appointments across the Executive Branch.
Trump’s lawyers in the election case sought to piggyback Thursday on the opinions of Cannon and Thomas, requesting Chutkan’s permission to file a formal motion to dismiss the case.
“The proposed motion establishes that this unjust case was dead on arrival — unconstitutional even before its inception,” they wrote.
Separately, Trump said in an interview Thursday with conservative radio host Hugh Hewitt that he would fire Smith “within two seconds” of taking office.
He also spoke glowingly 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. Never spoke to her. But we had a brave and very brilliant judge.”
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