Federal prosecutor Jack Smith is urging the judge overseeing former President Donald Trump’s classified documents case not to take into consideration a concurring opinion by Supreme Court Justice Clarence Thomas that calls into question his authority as a special counsel.
In a court filing Friday, Smith agreed to a briefing on the Supreme Court’s presidential immunity ruling and how it pertains to Trump’s case in Florida. But he sought to dissuade U.S. District Judge Aileen Cannon from factoring in Thomas’ opinion, which Trump’s lawyers say should be discussed.
“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.
Thomas had suggested that the appointment of Smith as special counsel raised a potential violation of the Constitution’s provisions on appointment power, and how an office may be created.
“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President,” Thomas wrote.
Trump’s attorneys had referred to Thomas’ concurrence in their request for a supplemental briefing, saying it “adds force to the motions relating to the Appointments and Appropriations Clauses.”
Trump’s legal team declined to comment Friday on Smith’s filing.
The special counsel’s filing comes roughly one week after Cannon agreed to permit additional briefing related to how the Supreme Court’s presidential immunity ruling would affect the case.
The Supreme Court ruled this month on part of Trump’s federal election interference case, also being prosecuted by Smith’s office, and said Trump has immunity for certain core presidential duties from his time in office. Other so-called official acts are also presumed to have immunity protections, while unofficial ones are not, the court said.
Trump has pleaded not guilty to charges that he willfully retained national defense information after leaving office and that he directed the deletion of security video at his Florida estate. The trial, initially scheduled to get underway in May, was postponed and a new date has not yet been set.
