Special counsel Jack Smith urges judge not to dismiss Trump’s federal election fraud prosecution

Special Counsel Jack Smith told a federal judge Thursday to reject former President Donald Trump’s move to dismiss his federal election fraud prosecution on the basis that the special counsel doesn’t have standing to bring the charges.

Mr. Smith said the filing by the former president’s lawyers is untimely because Mr. Trump did not raise the issue early on in the litigation, and that precedent within the D.C. Circuit Court of Appeals supports the special counsel’s authority.

He said federal law gives the attorney general authority to appoint a special counsel.

“The court should deny the defendant’s untimely motion for dismissal and his meritless claim,” Mr. Smith wrote.

Last week, Mr. Trump’s lawyers asked Judge Tanya Chutkan, an Obama appointee, to dismiss the case.

They said 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.

They pointed to Judge Aileen Cannon, a Trump appointee, in the Southern District of Florida who dismissed the classified documents prosecution that 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 [Merrick 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,” Mr. Trump’s filing last week 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 stated.

Conservative legal scholars have argued that Mr. 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.