Former President Donald Trump's legal team is arguing special counsel Jack Smith’s appointment was unconstitutional.
Trump's attorneys were set to make the arguments on Friday before District Judge Aileen Cannon in Fort Pierce, Florida, as part of multiday hearing, Politico noted.
The hearing will entertain a request Trump filed in February that his classified documents case should be thrown out because Attorney General Merrick Garland defied an appointments clause when he selected Smith to lead two prosecutions against Trump, the Washington Examiner noted.
"The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States," Trump’s defense attorneys argued.
"As such, Jack Smith lacks the authority to prosecute this action."
In a legal brief submitted in favor of Trump by two former Republican attorneys general and two law professors, the group of four maintained how only two special counsels (Jack Smith and Robert Mueller) in the past 40 years were appointed without having ever been confirmed by the Senate as U.S. attorneys.
"Contrary to Smith's attempt to portray the authority underlying his appointment as supported by longstanding precedent, in fact the legal basis for his appointment is a vestigial holdover of a bygone jurisprudential era," the four legal scholars wrote.
"And that legal flaw likely went unaddressed because, with only one exception, each special prosecutor for more than forty years before Smith’s appointment was in fact duly authorized by statute.”
In April, Trump shared an article on Truth Social that claimed Smith lacks the standing to defend a Washington, D.C., Circuit Court ruling on presidential immunity before the Supreme Court.
Steven Calabresi, professor at Northwestern Pritzker School of Law, claimed in an article for Reason that Smith's appointment as special counsel is unconstitutional.
"I have signed an amicus brief in this case, along with former Attorneys General Ed Meese, Michael Mukasey, and Professor Gary Lawson, and with Citizens United, arguing that Special Counsel Jack Smith was unconstitutionally appointed by Attorney General Merrick Garland," he said in the article.
"We claim that because Jack Smith was unconstitutionally appointed, he therefore lacks standing to defend the order of the D.C. Circuit denying Donald Trump's claim of inherent presidential immunity from criminal prosecution for acts taken while serving as President.
"Smith can no more defend the lower court order than can any random person picked off the street. Jack Smith is in the eyes of the law a private citizen, and all the acts he has taken since his appointment on November 18, 2022 are null and void.”