Donald Trump again asks court to dismiss January 6 criminal case, saying special counsel is unconstitutional

By Katelyn Polantz, CNN

(CNN) — Donald Trump’s legal team is asking a federal court to dismiss the January 6, 2021, election subversion case, saying that the office of special counsel Jack Smith is unconstitutional, in a court filing 12 days before the presidential election.

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

The defense peppered the filing on Thursday with political jabs at President Joe Biden, with a handful of mentions of the election as well as Biden’s comment this week to “lock him up … politically.”

Trump’s team writes that Garland was “following improper urging from President Biden to target President Trump, as reported at the time in 2022, and repeated recently by President Biden through his inappropriate instruction to ‘lock him up’ while Smith presses forward with the case unlawfully as the Presidential election rapidly approaches.”

“I know this sounds bizarre – it sounds like if I said this five years ago, you’d lock me up. We gotta lock him up,” Biden said in New Hampshire on Tuesday, adding, “Politically lock him up. Lock him out. That’s what we have to do.”

Trump’s court filing, however, does not mention the “politically” caveat or other context.

Judge Tanya Chutkan, who is overseeing the case against Trump in DC, has repeatedly said politics is playing no part in the decisions she makes, and Justice Department regulations that govern the special counsel’s office provide several mechanisms for Smith to make decisions independently from the attorney general. Garland and Biden have also maintained they do not coordinate on appointing special counsels, and a federal grand jury sitting in the DC District Court approved the indictment against Trump.

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

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

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

In addition to the political bent, the filing also aims for higher courts than Chutkan to consider the legality of Smith’s prosecutions.

Trump’s team is making some of the same arguments on the record that were successful in his bid to overturn the Florida classified documents case earlier this year, though the DC Circuit Court of Appeals, which sits above Chutkan, has already found special counsel’s offices to be constitutional.

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

Thursday’s filing allows Trump to push the issue forward later, following Chutkan’s ruling, possibly to the Supreme Court.

In Florida, Judge Aileen Cannon ruled, in the case about mishandling classified documents, that Smith’s team is unconstitutional, relying in part upon a recent dissent written by Justice Clarence Thomas. The Justice Department is appealing that ruling to the 11th US Circuit Court of Appeals. Cannon’s ruling and how the 11th Circuit handles the case is not binding on cases in the DC Circuit.

Trump’s lawyers also say that the DC Circuit Court of Appeals’ previous reasoning around special counsels shouldn’t apply to the former president’s case.

They argue both Smith’s appointment, which came from Garland and didn’t receive congressional approval, is invalid, as is how his office is funded, because it was not specifically authorized by Congress. Trump’s lawyers also ask the judge to tell Smith immediately to stop spending public funds on his office.

“Notwithstanding Judge Cannon’s findings, the Special Counsel’s Office has continued to pursue and spend money on this case, and the Office is directly pursuing the appeal of Judge Cannon’s ruling rather than the Department of Justice. These actions are ultra vires, and funded from a source of money that Smith and the Office should not be permitted to access,” the filing says.

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

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