Federal prosecutor Jack Smith is urging the judge over former President Donald Trump’s classified documents case not to consider a concurring opinion from Supreme Court Justice Clarence Thomas that casts doubt on the special counsel’s authority.
In a court filing on Friday, Judge Smith agreed to be briefed on the Supreme Court’s presidential immunity ruling and how it relates to Trump’s Florida case, but sought to dissuade U.S. District Judge Eileen Cannon from taking into account Thomas’ opinion, which Trump’s lawyers have said should be argued.
“The single-judge consensus ruling is not binding on this Court and provides no justifiable basis for departing from the uniform conclusion of all courts that have considered the issue that the Attorney General has the legal authority to appoint a special counsel,” prosecutors from Smith’s office wrote.
Thomas had suggested that Smith’s appointment as special counsel could violate constitutional provisions governing the power of appointment and how the position is created.
“Without a statute defining the role of a special counsel, he cannot move forward with this prosecution. A private citizen cannot bring criminal charges against someone, especially a former president,” Thomas wrote.
Trump’s lawyers pointed to Thomas’s agreement to the request for supplemental briefing and said it “adds strength to our motion on the appointments and appropriations clauses.”
Trump’s legal team declined to comment Friday on Smith’s allegations.
The special counsel’s filing came about a week after Cannon agreed to allow additional briefings on how the Supreme Court’s presidential immunity ruling affects the case.
The Supreme Court ruled earlier this month on part of a federal election interference case against President Trump being prosecuted by Smith’s office, saying that Trump has immunity from liability for certain key functions he performs while in office, and that other so-called official acts are presumed to be covered by immunity, but that non-official acts are not.
Trump has pleaded not guilty to charges that he knowingly retained national defense information after leaving office and ordered the deletion of security video from his Florida mansion. His trial, originally scheduled to begin in May, has been postponed and a new date has yet to be set.
