Special counsel Jack Smith has asked the judge in former President Donald Trump's classified documents case to disregard part of Supreme Court Justice Clarence Thomas' opinion questioning his authority to prosecute the case.
Trump's attorneys have called on U.S. District Judge Aileen Cannon, who is presiding over the case in Florida, to consider Thomas' opinion suggesting Smith's appointment was unconstitutional, as it was made by Attorney General Merrick Garland rather than "someone duly authorized to do so by the American people," reports NBC News.
Thomas' suggestion came as part of his decision agreeing on the Supreme Court's immunity ruling.
Smith Friday agreed to a briefing on the ruling but tried to keep Cannon from using Thomas' opinion.
"That single-Justice concurrence ... neither binds this Court nor provides a sound basis to deviate from the uniform conclusion of all courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel," prosecutors in Smith's office wrote in a memo to the court.
Thomas said in his opinion that if no law establishes the special counsel's office, "then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President."
Trump's attorneys, though, said Thomas' concurrence "adds force to the motions relating to the Appointments and Appropriations Clauses." They declined to comment on Smith's request.
His filing comes a week after Cannon agreed to allow additional briefings on how the Supreme Court's immunity ruling would affect the Florida case.
The immunity ruling, coming as part of the federal election interference case Smith is prosecuting against Trump, said the former president has immunity for some core presidential duties while no immunity for unofficial acts.
He has already pleaded not guilty to charges of willfully retaining national defense information after he left the White House, and charges of ordering security video from his Mar-a-Lago estate in Florida to be deleted. A new trial date has not been scheduled for the proceedings, which were to start in May.
Sandy Fitzgerald ✉
Sandy Fitzgerald has more than three decades in journalism and serves as a general assignment writer for Newsmax covering news, media, and politics.
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