Special counsel Jack Smith on Thursday asked a judge to decline to take up former President Trump’s latest bid to toss his Jan. 6 election interference case by arguing Smith was unlawfully appointed.
It’s the second time Trump’s team has made such an argument, and it was initially successful in his Florida classified documents case, though Smith has appealed that ruling.
Trump last week asked Judge Tanya Chutkan to dismiss the Jan. 6 case, mirroring arguments that he used in Florida before Judge Aileen Cannon.
But Smith on Thursday asked Chutkan not to take up Trump’s bid, writing that Trump’s team waited too long to raise the claim “more than a year after the original indictment.”
“The defendant’s failure both to file a timely challenge to the Special Counsel’s authority to prosecute this case and to establish good cause for his tardy filing should foreclose this Court from reviewing that claim,” Smith’s team wrote.
“Nothing in the superseding indictment provided any basis for his motion that did not exist before.”
Prosecutors on the D.C. case argued as they did in Florida that Smith’s appointment by Attorney General Merrick Garland followed the lawful process for tapping a special prosecutor.
Trump has argued that Smith was not lawfully appointed because he has not been confirmed by the Senate.
But that argument flies in the face of more than five decades of practice regarding special counsel appointments, including a Supreme Court case regarding the special counsel investigating former President Nixon.
“Contrary to the defendant’s claims, the Supreme Court’s determination in Nixon that the Attorney General had the statutory authority … to appoint the special prosecutor is binding; statutory analysis confirms that that determination was correct, and the long history of special counsel appointments reflected the Attorney General’s authority to appoint the Special Counsel here,” prosecutors wrote.
Chutkan has expressed skepticism about Cannon’s ruling, something prosecutors noted in their Thursday filing.
“As this Court observed at the status hearing on September 5, 2024, the defendant is relying on ‘dicta in a concurrence written by Justice Thomas’ and ‘an opinion filed by another district judge in another circuit which frankly this Court doesn’t find particularly persuasive’ in the face of ‘binding D.C. Circuit precedent on this issue,’” they wrote.
The 11th Circuit Court of Appeals is currently weighing Smith’s appeal of Cannon’s order.
That court has reversed some of Cannon’s earlier rulings, including one appointing a special master to review the evidence collected by the FBI at Mar-a-Lago.
