OPINION: This article may contain commentary which reflects the author's opinion.
Former President Donald Trump is busy campaigning to be President of the United States again, but his attorneys have not stopped working on the lawfare against him.
Attorneys for the former president filed a motion on Thursday to have Special Counsel Jack Smith dismissed from the case pertaining to the 2020 presidential election, saying that he was not lawfully appointed, Fox News reported.
It comes after his attorneys successfully contended that he was unlawfully appointed in another case against the former president involving classified documents.
“U.S. District Judge for the Southern District of Florida Aileen Cannon in July granted Trump’s request to dismiss the classified records charges, to which he pleaded not guilty, due to the ‘unlawful appointment and funding of Special Counsel Jack Smith,’” the Fox News report said.
The attorneys made a similar appeal in this case, presided over by Judge Tanya Chutkan, this week.
“President Donald J. Trump respectfully requests leave to file this proposed motion to dismiss the Superseding Indictment and for injunctive relief—which is timely and, alternatively, supported by good cause—based on violations of the Constitution’s Appointments and Appropriations Clauses,” the attorneys said.
The Clause reads Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States be appointed by the President subject to the advice and consent of the Senate, although Congress may vest the appointment of inferior officers in the President alone, in the Courts of Law, or in the Heads of Departments.”
But Special Counsel Smith was never approved by the Senate.
“The proposed motion establishes that this unjust case was dead on arrival— unconstitutional even before its inception,” the attorneys said.
They contended that Attorney General Merrick Garland “violated the Appointments Clause by naming private-citizen Smith to target President Trump, while President Trump was campaigning to take back the Oval Office from the Attorney General’s boss, without a statutory basis for doing so.”
“Garland did so following improper public urging from President Biden to target President Trump, as reported at the time in 2022, and repeated recently by President Biden through his inappropriate instruction to ‘lock him up’ while Smith presses forward with the case unlawfully as the Presidential election rapidly approaches,” they said.
The attorneys for the former president said that “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.”
And they said that Smith himself violated the Appropriations Clause, because he relied on an appropriation “that does not apply in order to take more than $20 million from taxpayers—in addition to Smith improperly relying on more than $16 million in additional funds from other unspecified ‘DOJ components’—for use in wrongfully targeting President Trump and his allies during the height of the campaign season.”
The attorneys said that the special counsel “was not appointed ‘by Law,'” and that he “has operated with a blank check by relying on an inapplicable permanent indefinite appropriation that was enacted in connection with a reauthorization of the Independent Counsel Act in 1987.”
“Smith was not appointed pursuant to that Act, which expired in 1999. The appropriation contemplates the possibility of appointment by some ‘other law,’ but no ‘other law’ authorized Smith’s appointment,” they said. “The appropriation also requires that the prosecutor be “independent,” in the very particular, rigorous sense that attorneys appointed pursuant to the defunct Independent Counsel Act were meant to be independent.”
“That is not true of Smith’s appointment, either,” the attorneys said.
“For these reasons, Smith should have never been permitted to access these huge sums of money, and his use of this funding violated the Appropriations Clause,” they said. “Based on these violations of the Appointments and Appropriations Clauses, the Superseding Indictment should be dismissed with prejudice. In addition, an injunction against additional spending by Smith is necessary to prevent ongoing irreparable harm and to ensure complete relief for the Appropriations Clause violation.”
