Donald Trump’s lawyers on Friday used the Supreme Court’s immunity ruling—and Supreme Court Justice Clarence Thomas’s concurring opinion—to argue that his entire classified documents case should be put on hold until the constitutionality of special counsel Jack Smith’s appointment is clarified.
Trump’s legal team filed a notice of supplemental authority asking the Trump-appointed Cannon to review Smith’s qualifications to pursue the case, citing Thomas’s opinion that questioned whether Smith was legally appointed to his position.
“Highlighting grave separation-of-powers concerns, Justice Thomas suggested that [U.S. penal code 28 subsections 515 and 533] do not establish ‘by Law’ Jack Smith’s position under the Appointments Clause,” the motion states.
In an ouroboros of conservative chaos, Thomas’s questioning follows Trump’s lawyers crafting that argument to Cannon, which The New York Times describes as one of the “far-fetched issues” Trump’s team has raised in an effort to remove Smith from the case. A notice of supplemental authority is essentially a summary of notable concerns addressed in oral arguments, meaning Trump’s lawyers argued against Smith being on the case, which Thomas in his concurrent Supreme Court opinion that ruled in Trump’s favor also floated, which Trump’s lawyers then used as support for their argument to remove Smith.
The notice follows hearings held by Cannon exploring whether Smith was legally appointed. The crux of the argument from Trump’s lawyers (and Thomas) is that special prosecutors have so much power, they should be voted into their roles by Congress and that Smith’s appointment is unconstitutional—even though settled law states the attorney general can appoint a special prosecutor and they are accountable to the attorney general.
“The legal issues and questions she claims to be struggling with are quite basic,” Joëlle Anne Moreno, a law professor at Florida International University, told The New York Times in June. “Most judges would consider many of the defense arguments to be meritless.”
Cannon has struggled with basic law concepts, is reportedly prone to exploitation due to her inexperience, and has shown unusual deference for Trump—including intervening in a Trump lawsuit arguing the classified documents he kept were his personal property, which Cannon ruled in his favor only for it to be overturned. That failed intervention provoked calls from more experienced judges to encourage Cannon to pass the case over to a better qualified judge when it was assigned to her in 2023, which she refused. Cannon also postponed the case indefinitely in May, and has spent weeks entertaining questions about Smith’s qualifications and funding with ineptitude that legal experts have described as “bonkers.”
