Lawyers for former President Trump filed a motion on Thursday to dismiss charges related to the 2020 election brought against him by Special Counsel Jack Smith, claiming he was unlawfully appointed, Fox News Digital has learned.
Trump lawyers were successful in arguing that Smith was unlawfully appointed in his separate case against the former president related to classified records.
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.’
Trump attorneys on Thursday filed a motion in U.S. District Court for the District of Columbia. Judge Tanya Chutkan is presiding over the case.
‘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 filing states.
The Appointments Clause says, ‘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.’ Smith, however, was never confirmed by the Senate.
‘The proposed motion establishes that this unjust case was dead on arrival— unconstitutional even before its inception,’ the Trump filing states.
Trump lawyers argued that in November 2022, Attorney General Merick 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,’ the filing states.
Trump lawyers were referring to comments made by President Biden this week, in which he said: ‘we got to lock him up,’ Biden said of Trump. However, the president quickly added, ‘Politically lock him up, lock him out. That’s what we have to do.’
But Trump lawyers argued 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.’
Trump attorneys argued that Smith violated the Appropriations Clause, saying 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.’
Trump attorneys argue that Smith ‘was not appointed ‘by Law,” and argue 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,’ the attorneys continue. ‘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.’
They added: ‘That is not true of Smith’s appointment, either.’
‘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,’ the filing states. ‘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.’
Trump pleaded not guilty to all charges.
A spokesperson for Special Counsel Jack Smith declined to comment when reached by Fox News.
Smith has until Halloween, Oct. 31, to file his response.
The Supreme Court earlier this year ruled that a president is immune from prosecution for official acts.
Smith was then required to file another indictment against Trump, revising the charges in an effort to navigate the Supreme Court ruling. The new indictment kept the prior criminal charges but narrowed and reframed the allegations against Trump after the high court’s ruling that gave broad immunity to former presidents.
Trump pleaded not guilty to all charges in the new indictment as well.
Trump, in an interview this week with Hugh Hewitt, said he would immediately fire Smith if elected.