Lawyers for Trump have argued the special counsel Jack Smith was unconstitutionally appointed.
Special counsel Jack Smith urged a federal judge on Thursday to reject the latest effort by former President Donald Trump to have his Jan. 6 case dismissed, arguing that the Republican presidential nominee’s attempt is both “untimely and without merit.”
In a filing with the U.S. District Court for the District of Columbia, Smith told U.S. District Judge Tanya Chutkan—who is overseeing Trump’s Jan. 6 case—that Trump failed to file the challenge in a timely manner, despite having filed a similar challenge in a separate case in the Southern District of Florida.
Trump is charged with allegedly mishandling classified documents at his residence at Mar-a-Lago in the Department of Justice’s case in Florida.
In the Florida case, Trump “timely filed the very challenge that he belatedly advances here, a year after the deadline for such a motion in this case,” Smith wrote.
“And in this case, although the defendant timely filed more than one hundred pages urging dismissal of the indictment, he chose not to raise the issues he now tries to put before the Court.”
Because Trump is unable to demonstrate “good cause” for his failure to file the claim in a timely manner, the court should not consider it, Smith said.
Lawyers for Trump last week asked Chutkan to throw out the superseding indictment against their client, arguing that Smith was unconstitutionally appointed.
Attorneys for Trump argued that Attorney General Merrick Garland lacked a “statutory basis” to appoint Smith as special counsel overseeing the Trump prosecution.
They further argued that Smith lacks the constitutional and statutory authority to prosecute the case because he was not nominated by the president and confirmed by the Senate.
“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,” Trump’s attorneys wrote in a filing with the court.Lawyers for Trump also sought an injunction preventing Smith from “spending additional public funds” amid his allegedly invalid appointment.
“That includes Smith’s separate violation of the Appropriations Clause by relying on an appropriation that does not apply in order to take more than $20 million from taxpayers,” the filing added.
His lawyers pointed to the Supreme Court’s July ruling on presidential immunity, in which Justice Clarence Thomas said there were “serious questions” regarding whether the attorney general violated the law by “creating an office of the Special Counsel that has not been established by law.”
Trump’s lawyers further noted U.S. District Judge Aileen Cannon’s decision to dismiss the Justice Department’s classified documents case against Trump in July on the basis that Smith was not lawfully appointed.
Smith has appealed Cannon’s ruling to the 11th U.S. Circuit Court of Appeals.
In his filing with the court on Thursday, Smith argued federal law grants the attorney general authority to appoint a special counsel, pointing to Supreme Court precedent in United States v. Nixon.
In that case, the court held that the president does not enjoy executive privilege or receive immunity when it comes to producing evidence in a criminal prosecution or other civil court actions.
“Because the defendant cannot demonstrate good cause for his failure to file a timely non-jurisdictional claim under the Appointments or Appropriations Clauses in this case, the Court should not consider it,” Smith wrote.
“If the Court nonetheless reaches the merits, it should reject the defendant’s argument that the Special Counsel is not lawfully appointed or funded.”
Trump has been charged with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction or an attempt to obstruct an official proceeding, and conspiracy against rights.
He has pleaded not guilty to all of the charges.