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Trump Attorneys: Jack Smith Unlawfully Appointed, Court Must Dismiss Classified Documents Case

Attorneys for former President Donald Trump filed several motions to dismiss a federal indictment led by Special Counsel Jack Smith on Thursday surrounding Trump’s handling of classified documents.

The former president is ultimately facing 40 counts in the Southern District of Florida stemming from allegations that he unlawfully retained national defense information and then tried to stall a federal probe into his handling of the documents. Special Counsel Jack Smith was appointed by Attorney General Merrick Garland in 2022 to handle two investigations into Trump, the other being related to January 6 and the riot at the U.S. Capitol.

One of the motions argues that Jack Smith was unlawfully appointed to his role under the Appointments Clause and the Appropriations Clause, and a second motion argues that Trump’s possession of classified documents at his Mar-A-Lago home was not unauthorized under the Presidential Records Act (PRA).

“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. As such, Jack Smith lacks the authority to prosecute this action,” the first motion reads, which was filed in the U.S. District Court Southern District of Florida West Palm Beach Division. 

“That is a serious problem for the rule of law—whatever one may think of former President Trump or the conduct Smith challenges in the underlying case,” the brief continues, quoting an amicus brief filed on behalf of former Attorney General Ed Meese and others earlier this week. “This is an issue of first impression in the Eleventh Circuit, and it requires that the Superseding Indictment be dismissed.”

Attorneys further argue that there is no statute establishing the Office of Special Counsel.

“As a result, because neither the Constitution nor Congress have created the office of the “Special Counsel,” Smith’s appointment is invalid and any prosecutorial power he seeks to wield is ultra vires,” the motion reads. 

Furthermore, attorneys are arguing that funding of Smith’s investigation into Trump’s handling of classified documents is in violation of The Appropriations Clause.

“President Biden’s DOJ is paying for this politically motivated prosecution of Biden’s chief political rival ‘off the books,’ without accountability or authorization,” the motion reads. “Rather than funding the Special Counsel’s Office through the ordinary budget process, Jack Smith is drawing on a permanent indefinite appropriation that, by its terms and under the Reno Regulations, is not  available to Special Counsel. Thus, Smith’s funding violates the Appropriations Clause.”

The second motion argues that the PRA gave President Trump “unreviewable discretion…to designate the records at issue as personal.”

“As such, President Trump’s possession of those records was not ‘unauthorized’ as alleged in Counts 1 through 32 [of the indictment]. Second, the PRA’s exclusive remedy for records collection efforts by NARA is civil in nature and forecloses criminal investigations,” the motion states. 

“Under the PRA, ‘during a President’s term of office,’ ‘the President shall remain exclusively responsible for custody, control, and access to . . . Presidential records,”’ attorneys added. 

Several other motions were filed under seal, likely because they contain sensitive information. 

A trial in the case is set for the end of May, according to CBS News. 

The case is USA v. Donald J. Trump, No. 23-80101-CR in the U.S. District Court Southern District of Florida West Palm Beach Division. 

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