In a motion filed in federal court in the Jan. 6 case against him, Trump’s attorneys argued that Smith’s appointment violates the appointments clause, asserting that Attorney General Merrick Garland lacked the authority to appoint Smith without Senate confirmation.

“Even if Smith is a valid officer, which he is not, he is a principal rather than an inferior
officer and his appointment is plainly unconstitutional because he was never nominated by the President or confirmed by the Senate,” wrote Trump’s attorney in a 30-page filing.

Trump’s legal team leaned heavily on a concurring opinion from Justice Clarence Thomas in the Supreme Court’s July 1 decision in Trump v. United States, in which the conservative justice questioned whether Smith’s role had been “established by law.”

Trump’s lawyers asserted that the issue of Smith’s appointment must be resolved before the Jan. 6 prosecution can proceed.

This argument echoes the legal strategy that previously led Trump-appointed Judge Aileen Cannon to dismiss another criminal case brought by Smith against Trump regarding classified documents. In that case, Cannon sided with Trump when dismissing the charges based on arguments related to the appointments clause. Trump’s legal team hopes for a similar outcome in this instance, although the current case is being overseen by Judge Tanya Chutkan, who has seldom ruled in Trump’s favor.

After Cannon’s decision, Garland disputed the ruling and said he partook in the “same process of appointing special counsel as was followed in the previous administration,” pointing to special counsels John Durham and Robert Mueller, who were appointed during the Trump administration.

In addition to challenging Smith’s appointment, Trump’s motion claimed that the special counsel’s office has misused taxpayer funds. According to the filing, Smith’s team has spent more than $20 million inappropriately, drawing on an expired 1987 appropriation related to the defunct Independent Counsel Act.

Trump argued that the government’s reliance on outdated legal frameworks is a violation of the appropriations clause, and the filing seeks an injunction to halt further spending by Smith’s office.

This latest motion aims to affect the trajectory of the case, as Trump and allies have stressed that the continued proceedings just days before Election Day mark a form of “election interference.” Chutkan recently issued a ruling responding to that allegation from Trump, writing in an order that stopping pretrial proceedings at this time would in itself mark a form of election interference by the court.

Legal experts have said Chutkan’s track record of ruling against Trump makes the outcome of Smith’s removal in this case less likely, while the U.S. appeals court is poised to weigh soon whether Cannon erred by dismissing the classified documents case earlier this year under the same legal theory.