Washington — Former President Donald Trump has requested two different federal courts to dismiss the criminal charges filed against him by special counsel Jack Smith, claiming that Smith's appointment was illegal and he lacks the authority to bring these prosecutions.

Trump's motions were submitted to the federal district court in Washington, D.C., which is handling the case related to the 2020 election, and to the U.S. appeals court in Atlanta, which is examining a lower court's decision that rejected the separate case concerning Trump's alleged mishandling of classified documents.

In the Washington case, Trump aims to submit a motion to dismiss the four criminal charges against him, arguing that Smith's appointment as special counsel was not lawful. A district court judge in South Florida, who is managing the documents case, terminated that prosecution in July after ruling that Smith was unconstitutionally appointed and funded.

The special counsel challenged that ruling earlier this year, contending that U.S. District Judge Aileen Cannon made an erroneous decision. He is also anticipated to contest Trump's attempt to dismiss the charges related to what prosecutors claim was an unlawful effort by the former president to retain power following the 2020 election.

  • The documents case

The federal appeals court is preparing to determine whether to reinstate Smith's prosecution of Trump regarding his management of sensitive government documents and alleged efforts to hinder the Justice Department's investigation.

In a brief submitted to that court, the U.S. Court of Appeals for the 11th Circuit, Trump's legal team claimed that the decision made by Cannon, who was appointed by the former president, was justified and should be upheld.

"There has never been a valid reason for Jack Smith's unlawful campaign against President Trump," his attorneys stated. "For nearly two years, Smith has acted unlawfully, supported by a mostly unchecked blank check funded by taxpayers."

They contended that the appeal raises concerns for the integrity of the presidency and asserted that the district court's ruling was correct based on textual, historical, structural, and practical considerations.

Prosecutors assert that Trump retained sensitive government documents at his Mar-a-Lago property in South Florida following his departure from the White House in January 2021 and obstructed government attempts to obtain the records. The special counsel has also accused Trump and two staff members of hindering the federal investigation. Trump, along with his two co-defendants, Walt Nauta and Carlos de Oliveira, has entered a not guilty plea. Cannon has dismissed the charges against all three individuals.

During a court-authorized search of Mar-a-Lago in August 2022, the FBI seized over 100 documents with classification markings, and prosecutors later disclosed that boxes of records were stored on a stage in the estate's ballroom, within a bathroom and shower, and in a storage area.

Trump contends that the criminal charges brought against him are driven by political motives and has denied any wrongdoing. He attempted to have the indictment dismissed on several bases, including the claim that Smith lacked the legal authority to bring the charges due to the manner in which Attorney General Merrick Garland appointed him in 2022.

The legal team of the former president contended that Smith's independent role within the Justice Department was unconstitutional. However, Smith's team countered, asserting in court documents that the designation of a special counsel adhered to Justice Department precedent, which had been affirmed in prior cases by other federal courts.

The latest instance was the appointment of Robert Mueller in 2017 to lead an investigation into Russia's attempts to meddle in the 2016 presidential election. In 2019, the federal appeals court in Washington, D.C., upheld Mueller's appointment.

Cannon held multiple days of hearings in June to evaluate the constitutionality of Smith's appointment before issuing her ruling dismissing the 40 charges against the former president.

"The essence of the matter is this: The Appointments Clause serves as an essential constitutional limit arising from the separation of powers, granting Congress a deliberate role in assessing the appropriateness of delegating appointment authority for inferior officers," she stated. "The special counsel's role effectively encroaches on that crucial legislative power, transferring it to a head of a department, while also jeopardizing the structural liberty inherent in the separation of powers."

In addition to determining that Smith's appointment breached the Appointments Clause, Cannon stated that the special counsel's office has been accessing funds from the Treasury without statutory permission, violating the Appropriations Clause.

Cannon's ruling — along with Trump's filings — referenced a concurring opinion from Justice Clarence Thomas in the 2020 election case related to Trump, which he attempted to dismiss on the basis of presidential immunity. The Supreme Court concluded that former presidents cannot be prosecuted for official actions taken during their time in office, and Thomas separately raised concerns about the legality of Smith's appointment. No other justice supported Thomas' viewpoint, and it does not hold binding authority.

Smith requested the 11th Circuit to evaluate Cannon's ruling and restore the case against Trump, contending that the attorney general "validly appointed" the special counsel and provided appropriate funding.

"In ruling differently, the district court strayed from established Supreme Court precedent, misinterpreted the statutes that sanctioned the special counsel's appointment, and inadequately considered the historical practice of attorney general appointments of special counsels," prosecutors stated in their initial brief to the appellate court.

The issue of whether Smith's appointment was lawful may ultimately be brought before the Supreme Court.

  • The 2020 election case

Proceedings in the election case in Washington had been paused for several months while the Supreme Court deliberated on whether Trump had immunity from prosecution, but they resumed in September. Following the high court's ruling, a federal grand jury issued a new indictment that accused Trump of four felony counts while streamlining the claims against him to align with the court's updated guidelines on presidential immunity.

Trump entered a not guilty plea. He is likely to pursue another attempt to have the case dismissed based on immunity, but in a filing on Thursday, he also contended that the charges should be dropped because Smith's appointment was unlawful. The former president is additionally requesting the judge to prevent the special counsel and his office from utilizing any further public funds.

"Every action taken by Smith since Attorney General Garland's appointment, while President Trump continued his prominent campaign against President Biden and then Vice President Harris, was illegal and unconstitutional," Trump's attorneys stated.

They claimed that their proposed motion to dismiss the indictment "demonstrates that this baseless case was invalid from the start — unconstitutional even before it began."

Trump's legal team contended that Smith's appointment is "clearly unconstitutional" since he was neither nominated by the president nor confirmed by the Senate.

Regarding the special counsel's funding, the defense asserted that Smith has been functioning with a "blank check."

Smith is anticipated to defend his appointment in the upcoming weeks, likely reiterating the arguments he made in the classified documents case.

Chutkan, a federal judge in Washington, isn't required to follow the ruling from Trump's other case and has shown her disagreement with Cannon's finding that Smith's appointment was beyond constitutional limits.

During a hearing in September, Chutkan expressed that she did not see that ruling as "particularly persuasive" and acknowledged her obligation to follow the 2019 decision from the D.C. Circuit that upheld a previous special counsel appointment.

Trump is seeking a second term in the presidency and has claimed he would dismiss Smith "instantly" if he wins against Vice President Kamala Harris in the upcoming presidential race.