On Thursday, former President Donald Trump’s legal team filed a motion seeking to dismiss special counsel Jack Smith’s election interference case, arguing that Smith’s appointment was unlawful and that he should no longer receive taxpayer funding, according to court documents.
The motion intensifies the ongoing legal battle between Trump and Smith, which has seen a surge in developments in recent weeks. On October 2, Judge Tanya Chutkan released a redacted 165-page brief from Smith, outlining evidence against Trump. Trump’s lawyers contend the case is unconstitutional, arguing it violates the “Appointments and Appropriations Clauses” as Smith was not “properly appointed by law.”
The filing argues that “even if Smith were a legitimate officer, which he is not, he would qualify as a principal officer rather than an inferior one, making his appointment unconstitutional, as he was neither nominated by the President nor confirmed by the Senate.” It also claims that Smith’s role, with broad jurisdiction and lacking effective oversight, violates the Constitution’s Appointments Clause.
Attorney General Merrick Garland appointed Smith in November 2022 to lead the investigation. Trump’s legal team argues that Smith’s appointment as a private citizen was a targeted move lacking statutory authority, asserting that it breached constitutional standards as Trump campaigned for the presidency.
Referencing a recent ruling from July 15, in which Judge Aileen Cannon dismissed Smith’s separate case involving Trump’s handling of classified documents on similar grounds, Trump’s filing cited U.S. Supreme Court Justice Clarence Thomas’ opinion on presidential immunity, suggesting that Smith’s role might be structurally unconstitutional.
In support of their motion, Trump’s attorneys have also demanded an end to Smith’s access to public funds, arguing that the special counsel’s office has been “improperly drawing from the Treasury without statutory authorization.” They claim Smith’s office has spent over $36 million targeting Trump and his associates during the campaign season without proper Congressional appropriations.
Trump’s team further referenced recent comments from President Joe Biden at a New Hampshire Democratic National Committee office, where Biden remarked on “locking up” Trump before clarifying he meant politically.
In an interview with radio host Hugh Hewitt on Thursday, Trump reinforced his position, saying he would fire Smith “within two seconds” if he wins the 2024 election, labeling him as “crooked.”
Trump’s lawyers opposed the public release of Smith’s new briefing on presidential immunity, but Judge Chutkan denied the request, releasing the evidence. In an October 18 response, Chutkan noted that withholding evidence could potentially be seen as “election interference.”
