Left: Special Counsel Jack Smith speaks about an August 2023 indictment of former President Donald Trump at a DOJ office in Washington (AP Photo/J. Scott Applewhite, File). Center: President Joe Biden delivers remarks on lowering the cost of prescription drugs, at NHTI Concord Community College, Tuesday, Oct. 22, 2024, in Concord, N.H. (AP Photo/Steven Senne). Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York (AP Photo/Julia Nikhinson, Pool).
Attorneys for former President Donald Trump late Friday filed their reply to the government’s appeal of the Mar-a-Lago case dismissal.
In an 85-page filing with the U.S. Court of Appeals for the 11th Circuit, the defense sought to maintain the status quo by insisting that special counsel Jack Smith was “correctly” defanged by U.S. District Judge Aileen Cannon after being “unlawfully” granted his authority to prosecute by a White House bent on exacting a political vendetta.
“There is not, and never has been, a basis for Jack Smith’s unlawful crusade against President Trump,” the brief begins. “For almost two years, Smith has operated unlawfully, backed by a largely unscrutinized blank check drawn on taxpayer dollars. More than $36 million has been spent unjustly targeting the leading candidate in the 2024 Presidential election, President Trump, through unprecedented encroachments on Executive power, with President Biden wrongly and inappropriately urging to ‘lock him up’ only days before the filing of this brief as part of the election-interference strategy.”
In the heat of the summer, the Southern Florida judge, with a surprise ruling, ordered a kibosh on proceedings based on a novel understanding of the Appointments Clause of the U.S. Constitution.
In August, Smith filed his opening salvo in a bid to resuscitate the long-beleaguered case. Now, the 45th president aims to make sure the Mar-a-Lago indictment stays dead as a doornail.
The heart of the defense’s argument is that Smith was not appointed “by Law.” This constitutional requirement boils down to a claim the prosecutor ought to have been either confirmed by the Senate — in the manner of, say, a U.S. Attorney — or “authorized” by statute.
In Smith’s case, of course, there was never an attempt to go through the Senate — he was appointed by Attorney General Merrick Garland.
To hear Trump and his two co-defendants tell it, however, Garland did little more than “appoint a private citizen as special counsel in order to target a former President, and leading Presidential candidate, by using power that exceeds the authority granted to Presidentially-appointed and Senate-confirmed U.S. Attorneys.”
On top of that, the defense argues, Smith has not put up much of a fight in terms of the legal justification for the special counsel’s office.
“No statute supports Smith’s appointment,” the defense brief argues. “That is why [the special counsel’s office’s] brief starts by emphasizing a sentence from Nixon v. United States, that, respectfully, cannot qualify as anything but unreasoned and unpersuasive dictum.”
The Trump argument, per force, relies heavily on analysis offered by U.S. Supreme Court Justice Clarence Thomas in a concurrence — not the majority opinion — tacked onto the landmark case where Chief Justice John Roberts created the concept of presidential immunity to criminal prosecution. Cannon would go on to famously use the concurrence to that opinion to squelch special Smith’s authority and dismiss the case. The defense’s brief refers to Thomas some 15 times.
Thomas’ concurrence largely echoed arguments made by conservative amici curiae (Latin for “friends of the court”) on the Mar-a-Lago case docket. Somewhat controversially, Cannon recently heard oral arguments from several groups of amici regarding the legality of Smith’s appointment as special counsel.
Those amici asserted “private citizen” Smith’s appointment by U.S. Attorney General Merrick Garland violated the Constitution because he was neither confirmed by the Senate nor sufficiently “authorized” by statute. Trump and his co-defendants, for their part, made similar objections to Smith’s role and funding in various defense motions.
And, though Trump v. United States was not about the Mar-a-Lago case, Smith and his office were implicated because he is the special counsel who brought and led both prosecutions.
In the present brief, Thomas is largely cited to serially reject a series of statutes that might seemingly be relied upon by the government to justify the grant of power given to Smith and the special counsel’s office. Rather, the justice says, and the defense maintains, the only such statute that actually supports the kind of power at stake here — the Independent Counsel Act — was allowed to lapse by Congress in 1999.
“We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee,” the brief reads — directly quoting Thomas to make the case that Smith’s appointment is a grave violation of founding principles.
The defense summarizes their case as follows:
Smith’s role violates the Appointments Clause because he operates as a principal officer without Presidential nomination and Senate confirmation. Smith has operated without the type of oversight and accountability that are hallmarks of inferior officers. Unless and until removed, the duration of Smith’s tenure is largely up to him. His expansive jurisdiction exceeds that granted to U.S. Attorneys, who are principal officers, including his ability to operate in multiple districts as well as his ability to use Senate-confirmed U.S. Attorneys as force multipliers by making referrals under the unlawful Appointment Order.
A secondary argument advanced by Trump is that Smith, unlawfully in his position, has, in turn, unlawfully pilfered the public purse to the tune of several tens of millions of dollars in order to hamstring Biden’s political rival.
Cannon previously addressed this issue in her dismissal — but found the Appointments Clause violation was enough to drop the case. The defense, seeking to press their advantage and convince the appellate court to affirm the dismissal, says this second constitutional violation necessarily follows the first. Or, in other words, since Smith was illegally appointed, Trump’s attorneys argue, he could not possibly be entitled to spend the public’s money.
“Smith violated the Appropriations Clause,” the Trump brief reads. “In addition to relying on more than $16 million in funds from unspecified ‘DOJ components,’ Smith has taken more than $20 million from a 1987 DOJ permanent indefinite appropriation that requires an appointment pursuant to the lapsed Independent Counsel Act or some ‘other law.’ He meets neither requirement. The appropriation also requires that Smith be ‘independent,’ in the particular, rigorous sense that attorneys appointed pursuant to the Act were meant to be independent. He fails that standard too. For this additional reason, this Court should affirm.”
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