Donald Trump is again asking the court to dismiss the Jan. 6 criminal case, saying a special counsel is unconstitutional

CNN
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Donald Trump’s legal team is asking a federal court to dismiss the Jan. 6, 2021, election subversion case on the grounds that the office of special counsel Jack Smith was unconstitutional, in a court filing filed 12 days before the presidential election.

“Everything Smith did since the appointment of Attorney General (Merrick) Garland, as President Trump continued his leadership campaign against President Biden and then Vice President Harris, was unlawful and unconstitutional,” Trump’s lawyers argue.

The defense peppered the filing Thursday with political digs at President Joe Biden, with a handful of mentions of the election as well as Biden’s remark this week that he should “lock him up… politically.”

Trump’s team writes that Garland “followed President Biden’s inappropriate urging to target President Trump, as reported back in 2022, and was recently echoed by President Biden’s inappropriate directive to ‘lock him up’ while Smith the.” “Unlawfully advancing the case” as the presidential election quickly approaches.”

“I know that sounds bizarre – it sounds like I would be locked up if I had said that five years ago. We have to lock him up,” Biden said Tuesday in New Hampshire, adding: “Lock him up politically. Lock him out. This is what we have to do.”

However, Trump’s court filings make no mention of the “political” caveat or any other context.

Judge Tanya Chutkan, who is presiding over the case against Trump in D.C., has repeatedly said that politics plays no role in her decisions and that Justice Department rules governing the special counsel’s office provide several mechanisms for Smith to be tried independently Lawyer can make general decisions. Garland and Biden have also claimed that they would not coordinate on the appointment of special counsel, and a federal grand jury in D.C. District Court approved the indictment against Trump.

Earlier Thursday, Trump said he would fire Smith if elected.

“Oh, it’s so simple. It’s that simple,” Trump said when asked by conservative radio host Hugh Hewitt whether he would “pardon himself” or “fire Jack Smith.”

“I would fire him in two seconds,” Trump said said.

In addition to being political, the filing also aims to have courts higher than Chutkan consider the legality of Smith’s prosecution.

Trump’s team is making some of the same arguments that worked for him Earlier this year, the government tried to overturn the secret documents case in Florida, even though the D.C. Court of Appeals, which sits over Chutkan, has already found the special counsel’s office unconstitutional.

The precedent Chutkan must follow allows special counsel offices to investigate and prosecute federal cases on behalf of the Justice Department. Chutkan has already indicated that she is willing to uphold the constitutionality of the special counsel’s office in her court.

Thursday’s filing allows Trump to potentially advance the matter to the Supreme Court later, after Chutkan’s ruling.

In Florida, Judge Aileen Cannon ruled that Smith’s team was unconstitutional in the mishandling of confidential documents case, relying in part on a recent dissent written by Justice Clarence Thomas. The Justice Department is appealing this ruling to the 11th U.S. Circuit Court of Appeals. Cannon’s decision and the way the 11th Circuit handled the case are not binding on cases in the D.C. District.

Trump’s lawyers also say the D.C. Circuit Court of Appeals’ previous reasoning on special counsel should not be applied to the former president’s case.

They argue that both Smith’s appointment, which was made by Garland and did not receive congressional approval, and the way his office is funded are invalid because it was not expressly approved by Congress. Trump’s lawyers are also asking the judge to immediately order Smith to stop spending public money on his office.

“Notwithstanding Judge Cannon’s findings, the Office of Special Counsel has continued to prosecute and spend money on this case, and the Office is directly pursuing the appeal of Judge Cannon’s decision, not the Department of Justice.” These actions are ultra vires and arise from a “Funded from a source of funds to which Smith and the Office should not have access,” the filing states.

Trump’s Chutkan filing on Thursday is one of several arguments he is making to dismiss his conspiracy and obstruction charges related to his actions through January 6, 2021.