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OPINION: This article may contain commentary which reflects the author’s opinion.
While attempting to have the case involving the classified documents dismissed, former President Donald Trump has maintained that Special Counsel Jack Smith was appointed improperly.
On Thursday, Trump’s attorneys submitted several motions seeking the dismissal of the federal case. In response to accusations that he unlawfully kept classified materials after leaving office in January 2021 and thwarted efforts by the federal government to obtain them, the former president entered a not-guilty plea to 40 charges.
The contested claim that Trump can invoke absolute immunity is one of the arguments made by his attorneys. Additionally, Trump’s legal team argues that since he designated the materials as his records during his presidency, the Presidential Records Act permits him to retain them after leaving the White House.
Additionally, according to one of the filings, Attorney General Merrick Garland’s appointment of Smith in November 2022 was illegal because the Senate had not given its approval beforehand. The filing also mentioned that a prior argument had brought up the “serious problem,” which is why the Appointments and Appropriations clauses require this.
“The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States,” Trump’s lawyers wrote.
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“As such, Jack Smith lacks the authority to prosecute this action,” they added.
The legal team for Donald Trump also refers to a previous Supreme Court petition that a group of academics and the former attorney general of Ronald Reagan filed. Smith was a private citizen, they claimed, and he had no right to be named special counsel.
In December 2023, Edwin Meese, the former Attorney General, and law professors Steven Calabresi and Gary Lawson filed documents with the Supreme Court to expedite the court’s decision regarding Trump’s immunity from prosecution.
The former president claims he can dismiss the federal investigation into the circumstances leading up to the attack on January 6 by citing absolute immunity.
Since the allegations concern Trump’s administration, Smith is also serving as special counsel overseeing this investigation.
According to the Supreme Court petition, Smith “lacks authority” to ask the nation’s highest court to rule on the immunity argument right away.
“Nor does he have authority to conduct the underlying prosecution. Those actions can be taken only by persons properly appointed as federal officers to properly create federal offices,” the motion states.
“Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. And that is a serious problem for the American rule of law—whatever one may think of the defendant or the conduct at issue in the underlying prosecution.”
Smith is facing new headwinds in his cases against Trump after a decision by U.S. Supreme Court Chief Justice John Roberts last week.
Last week, a three-judge federal appeals court in Washington, D.C., unanimously rejected Trump’s sweeping claim of immunity.
However, pending the Supreme Court’s consideration of Trump’s plea for emergency relief, the judges opted not to remand the case to a lower court for trial.
Smith has already pleaded with the courts to settle the immunity dispute as soon as possible, allowing Trump’s trial in Washington, D.C., which was originally scheduled for March 4, to start later this year.
In an attempt to get a quicker resolution, the special counsel asked the Supreme Court to consider the immunity issue in December, even before the D.C. Circuit Court of Appeals had reviewed it. However, the justices rejected the request.
“This Court’s immediate review of that question is the only way to achieve its timely and definitive resolution,” Smith wrote in the December filing. “The Nation has a compelling interest in a decision on (Trump’s) claim of immunity from these charges — and if they are to be tried, a resolution by conviction or acquittal, without undue delay.”
Meanwhile, Justice Samuel Alito argued last week that Colorado’s prohibition of Trump’s eligibility to run for president is “quite severe” during a hearing to decide whether kicking him off the state’s 2024 ballot under the guise of “insurrection” is constitutional.
