On the same day former President Donald J. Trump vowed that if elected he would immediately fire Jack Smith, his lawyers sought to move ahead with an effort to have the federal election interference case against Mr. Trump dismissed on the grounds that Mr. Smith had been illegally appointed to his job as special counsel.
The request to launch a fresh attack on the indictment brought by Mr. Smith charging Mr. Trump with seeking to overturn the results of the 2020 election came as the 2024 election sped toward its conclusion.
“The proposed motion establishes that this unjust case was dead on arrival — unconstitutional even before its inception,” Mr. Trump’s lawyers wrote in papers filed in Federal District Court in Washington on Thursday.
The lawyers went on to say that they believe Attorney General Merrick B. Garland violated the Appointments Clause of the Constitution “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.”
Mr. Trump’s lawyers were required to ask Judge Tanya S. Chutkan, who is overseeing the election case, for permission to file their motion in part because a federal appeals court in Washington had already weighed in on the question, ruling that the appointment of special counsels like Mr. Smith is in fact valid.
Both Judge Chutkan and the appeals court are unlikely to look with much favor on Mr. Trump’s attempt to challenge Mr. Smith’s appointment.
Even tendering the request for permission to make the challenge was somewhat unusual, given that it was offered more than a year after Mr. Trump submitted his initial round of motions seeking to have the case dismissed. The request was only made after a ruling by a judge in Florida who used the same legal reasoning to kill Mr. Trump’s other federal case — the one in which he stands accused of illegally holding on to dozens of classified documents after he office.
In their filing to Judge Chutkan, Mr. Trump’s lawyers praised the ruling by the Florida judge, Aileen M. Cannon, to throw out the classified documents case over the constitutionality of Mr. Smith’s appointment as “thorough and well-reasoned.” Earlier this week, Judge Cannon’s name appeared on a list prepared by some advisers to Mr. Trump identifying her as a possible choice for top legal positions in a Trump administration.
Mr. Smith has appealed Judge Cannon’s ruling and Mr. Trump’s lawyers are scheduled to file their defense of her opinion to an appeals court in Atlanta on Friday.
One of the most striking aspects of the attempt by Mr. Trump’s lawyers to challenge Mr. Smith’s appointment in the election interference case is the way they cited as a legal authority a highly unusual move taken this summer by Justice Clarence Thomas, whose wife, Virginia, played a role in trying to keep Mr. Trump in office.
When the Supreme Court issued a ruling in July saying that Mr. Trump was immune from prosecution on some of the election subversion charges, Justice Thomas joined the majority but advanced his own reason for making the decision: He went out of his way to suggest that Mr. Smith may have been given his job without legal basis, even though the issue, at that point, was not part of the underlying case.
Questions about whether Justice Thomas’s role in deciding the issue of immunity amounted to a conflict of interest were raised almost immediately as it became clear that the Supreme Court would consider the question.
Late last year, after Mr. Smith asked the court to take up Mr. Trump’s immunity claims, several House Democrats sent a letter to Justice Thomas, calling on him to recuse himself from the case, citing his wife’s involvement in Mr. Trump’s attempts to stay in power.
“We know through public reporting and through congressional investigations that your wife, Virginia (‘Ginni’) Thomas was intimately involved in Mr. Trump’s alleged efforts to overturn the 2020 election and to obstruct its certification — the very conspiracies at issue in this case,” the letter said. “Your wife not only attended the pro-Trump rally that preceded the Jan. 6 attack on the United States Capitol, she was one of nine board members for a conservative political group that helped lead the ‘Stop the Steal’ movement.”
In their filing on Thursday, Mr. Trump’s lawyers strayed from making typical legal arguments about Mr. Smith’s appointment to take a quick potshot at President Biden’s recent remarks that he wanted to see his predecessor behind bars.
The lawyers said that Mr. Biden’s statement “We got to lock him up” — which he quickly walked back — was inappropriate.
That broadside risked irking Judge Chutkan, who recently cautioned Mr. Trump’s legal team that its “pattern of defense filings focusing on political rhetoric” was “unresponsive and unhelpful to the court” and “unbefitting of experienced defense counsel.”
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