The former president and his legal team argued that special counsel Jack Smith ‘lacks the authority’ to prosecute the case.
Former President Donald Trump filed several motions to dismiss a classified documents case being pursued against him in Florida on Thursday, arguing that, amongst other things, special counsel Jack Smith “lacks the authority” to prosecute the case.
In one of four motions, attorneys for the former president contend that neither the U.S. Constitution nor Congress had officially established the special counsel’s office, rendering Mr. Smith’s appointment invalid.
Furthermore, they argue that the special counsel’s office is being funded “off the books” by the Biden administration.
The motion, which cites the Appointments Clause, argues that Attorney General Merrick Garland did not have the authority to appoint a “like-minded political ally” as special counsel “without Senate confirmation.”
“As such, Jack Smith lacks the authority to prosecute this action,” the motion reads.
President Trump’s lawyers argue that the only remedy is to dismiss the superseding indictment.
The Appointments Clause stipulates that all federal offices, except for the president’s, must be established by Congress and appointed with the advice and consent of the Senate. This is with the exception of federal offices created through the Necessary and Proper Clause, which empowers Congress to make laws necessary and proper for carrying into execution the powers vested in the government.
“There is, however, no statute establishing the Office of Special Counsel,” the motion reads.
“As a result, because neither the Constitution nor Congress have created the office of the ‘Special Counsel,’ Smith’s appointment is invalid and any prosecutorial power he seeks to wield is ultra vires,” meaning beyond his authority.
Funding of Smith’s Office Challenged
In addition to arguing that Mr. Smith’s appointment was unlawful, the four motions argued that the case should be dismissed on the basis of presidential immunity, the Presidential Records Act, and unconstitutional vagueness.
Mr. Garland appointed Mr. Smith as special counsel on Nov. 18, 2022, to “prosecute federal crimes arising from the investigation” into President Trump’s handling of classified documents seized from his Mar-a-Lago estate in Palm Beach.
President Trump’s attorneys argue in their Thursday filing that Mr. Smith, at best, is classified as an employee rather than an “officer” under the statutes cited by Mr. Garland in making his appointment, which they say lacks the legal foundation required by the Appointments Clause.
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