Trump tells judge to dismiss federal election fraud charges, says Jack Smith unlawfully appointed

Former President Donald Trump’s attorneys told a federal judge Thursday to dismiss his federal election fraud prosecution in Washington because Special Counsel Jack Smith was not lawfully appointed.

“This unjust case was dead on arrival — unconstitutional even before its inception,” Mr. Trump’s legal team wrote.

They said that Supreme Court Justice Clarence Thomas in the high court’s July ruling on presidential immunity from criminal prosecution noted that the appointment of a special counsel may be unlawful since it was not dictated by law.

The lawyers also said Judge Aileen Cannon, a Trump appointee, in the Southern District of Florida dismissed the classified documents prosecution Mr. Smith had brought against the former president on the basis that Mr. Smith was not lawfully appointed. Mr. Smith has appealed that ruling to the 11th U.S. Circuit Court of Appeals.

“In November 2022, the Attorney General 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,” Mr. Trump’s filing on Thursday read.

“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 continued.

The lawyers also charge that Mr. Smith has inappropriately spent more than $20 million in taxpayer funds. 

Conservative legal scholars have argued that Attorney General Merrick Garland had no constitutional or statutory authority to appoint Mr. Smith to conduct the high-level criminal investigation of Mr. Trump because he was a private citizen and not confirmed by the Senate.

Mr. Smith worked as a U.S. attorney but was living in the Netherlands at the time of his appointment in November 2022, according to reports.

Mr. Smith’s team has argued there are at least four statutes that support his appointment, according to The Associated Press, and that if Judge Cannon’s ruling were to stand, it would call into question other appointments made in the Executive Branch.

Judge Tanya Chutkan, an Obama appointee overseeing the federal elections case, already commented on Mr. Smith’s standing during last month’s status hearing, saying she did not find Judge Cannon’s ruling “very persuasive.”

Mr. Smith is prosecuting Mr. Trump on felony charges related to his efforts to overturn the 2020 presidential election and a case involving the alleged mishandling of classified documents after Mr. Trump left office.

The case was put on hold for seven months as the Supreme Court weighed whether a president is immune from criminal prosecution. 

The justices in a 6-3 ruling said presidents enjoy absolute immunity for core presidential functions, presumed immunity for other duties and no immunity for unofficial acts.


The ruling has now left lower courts to grapple with what charges may continue to be brought against Mr. Trump, as he battles prosecutors in courtrooms up and down the East Coast.