Special counsel Jack Smith on Thursday rubbished the latest efforts by former President Donald Trump to have the Jan. 6 prosecution against him dismissed as both “untimely and without merit.”
Earlier this month, Trump’s attorneys ventured forth with a reprise of arguments that secured a dismissal of the Mar-a-Lago documents case over the summer. Namely: the defendant argued the prosecutor in charge of the case was given his authority in violation of the U.S. Constitution’s appointments and appropriations clauses.
Now, the special counsel’s office argues that the retread claim was made far too late — and in violation of binding precedent in the D.C. Circuit.
Smith’s office recites the relevant history — recalling how Trump’s defense team successfully scuppered the state in the case overseen by U.S. District Judge Aileen Cannon. At the same time, the prosecutor urges U.S. District Judge Tanya Chutkan not to take the same path.
“In a separate case against the defendant in the Southern District of Florida, he timely filed the very challenge that he belatedly advances here, a year after the deadline for such a motion in this case,” the government’s response in opposition reads. “And in this case, although the defendant timely filed more than one hundred pages urging dismissal of the indictment, he chose not to raise the issues he now tries to put before the Court. Because the defendant cannot demonstrate good cause for his failure to file a timely non-jurisdictional claim under the Appointments or Appropriations Clauses in this case, the Court should not consider it.”
To hear the government tell it, the defense simply waited too long to make their present argument.
More Law&Crime coverage: ‘Defendant fails’: Jack Smith rips Trump’s ‘half-hearted’ dismissal bid in Jan. 6 case for being wrong on the law
In his proposed motion to dismiss, Trump aimed to overcome two obvious hurdles with arguments based on the appointments and appropriations clauses: (1) the belated filing issue highlighted by Smith; and (2) Chutkan’s own askance attitude to the concept,
To do so, the defendant relied heavily on legal arguments attributed to U.S. Supreme Court Justice Clarence Thomas.
That is, Trump’s motion cites a concurrence written by Thomas as an “intervening opinion” that essentially functioned as new information. This concurrence was only penned after the otherwise applicable deadline to list all arguments for dismissal, and, therefore, the argument necessarily could not have been made before the deadline.
The analysis offered by Thomas came in the landmark ruling where Chief Justice John Roberts issued a broad grant of presidential immunity to Trump. Cannon would go on to use the concurrence to that opinion to squelch special Smith’s authority and dismiss the case.
Thomas was the only justice to cite the long-simmering Appointments Clause issue in an unfavorable light for the government in any of the opinions attached to Trump v. United States. The majority opinion actually lists several ways in which the appointments power inures to the executive’s benefit. Thomas was also the only justice to mention the phrase “Appointments Clause” directly.
Smith, for his part, tersely rejects Trump’s appeal to Thomas’ authority — and Cannon’s cross-country ruling based on it.
“[N]either that solo concurring opinion on a question that the parties did not brief or argue to the Supreme Court nor the unpersuasive out-of-circuit district court opinion binds this Court,” the government’s motion reads.
More Law&Crime coverage: ‘Unjust case was dead on arrival’: Trump moves to dismiss Jan. 6 indictment and stop ‘private-citizen Smith’ from spending money — with Clarence Thomas leading the way
The prosecution also addresses the defense’s argument on the merits — and finds it entirely lacking in terms of legal support.
“The defendant argues that the Special Counsel lacks the constitutional and statutory authority to prosecute this case because (1) he is a principal officer who was not nominated by the President and confirmed by the Senate, and (2) even if the Special Counsel is an inferior officer, the Attorney General lacked a statutory basis for appointing him,” the government’s motion reads. “But the D.C. Circuit has squarely rejected both claims.”
Instead, Smith says, the appeals court has already ruled on the issue — in a precursor case tangentially involving Trump himself.
“The D.C. Circuit’s decision in In re Grand Jury Investigation, squarely forecloses the defendant’s Appointments Clause argument,” the government’s motion reads — referring to a case involving special counsel Robert Mueller. “And the defendant’s Appropriations Clause challenge fails because it is entirely derivative of his faulty Appointments Clause claim.”
In his motion to dismiss, Trump also frames the appointments clause issue as a “fatal Constitutional defect” that is “causing irreparable harm.” The motion suggests Smith was only appointed as part of a first-ditch political effort by the Biden administration to hamstring the Democratic Party’s foremost bête noire.
Smith dedicates two footnotes to Trump’s political arguments.
The first footnote reads:
The second footnote reads:
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