Former President Donald Trump has argued that Special Counsel Jack Smith was improperly appointed to the position while trying to dismiss the classified documents case.
Trump's lawyers filed a series of motions on Thursday attempting to throw out the federal case. The former president has pleaded not guilty to 40 charges over allegations he illegally retained classified materials after he left office in January 2021, then obstructed the federal attempt to retrieve them.
Newsweek has emailed the Department of Justice for comment.
Among the arguments put forward by Trump's lawyers is the disputed claim he can cite absolute immunity. His legal team also says that the Presidential Records Act means Trump was allowed to keep the sensitive materials when he left the White House because he designated them his personal records while he was president.
One of the filings also argued that Attorney General Merrick Garland's appointment of Smith in November 2022 was unlawful as it was not first approved by the Senate. This is required by the Appointments Clause and the Appropriations Clause; a previous argument had raised the "serious problem," the filing added.
"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.
"As such, Jack Smith lacks the authority to prosecute this action," they added.
The filings from Trump's lawyers also quote a previous petition to the Supreme Court by a team of legal scholars and former president Ronald Reagan's attorney general. They said that Smith was a private citizen who was not authorized to be appointed as special counsel.
The filings from former Attorney General Edwin Meese and law professors Steven Calabresi and Gary Lawson were submitted in December 2023 as Smith was attempting to fast-track the Supreme Court to rule on whether Trump is immune from prosecution. The former president says he can cite absolute immunity to dismiss the federal investigation into the events that led up to the January 6 attack. Smith also oversees this probe as special counsel, as the allegations relate to Trump's time in office.
The petition to the Supreme Court said that Smith cannot request the country's highest court to immediately rule on the immunity argument as he "lacks authority" to do so.
"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 created 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."
Trump, the expected 2024 Republican presidential nominee, has also accused both federal cases of being politically motivated "witch hunts" that aim to prevent him winning the next election.
When Garland announced the appointment of Smith as special counsel, he cited his "authority" as attorney general to do so. He said there was a law that granted him permission in the role to appoint officials to investigate matters.
Bill Barr, the former attorney general in the Trump administration, cited the same law when he appointed Special Counsel John Durham to investigate the origins of an FBI inquiry into Russian interference in the 2016 United States election, reported CNN.
Trump is scheduled to go on trial to face the classified documents charges in May.
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About the writer
Ewan Palmer is a Newsweek News Reporter based in London, U.K. His focus is reporting on US politics, domestic policy ... Read more
