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Jack Smith has a legal right to prosecute Donald Trump for hoarding classified documents, a group of legal experts have told a Florida judge.
Judge Aileen Cannon, a Trump appointee, is considering a motion by Trump's lawyers, claiming it is illegal to appoint Smith as special counsel in charge of the federal prosecutor of Trump.
The submission opposing the claim was filed as a "friend of the court" by a group of legal experts. A friend of the court submission is an expert opinion filed by people who are not directly involved in a case.
The former president is facing 40 federal charges over his handling of sensitive materials retrieved from his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House in January 2021. He is accused of obstructing efforts by federal authorities to return them. Trump has pleaded not guilty to all charges.
Newsweek has contacted Trump's attorney via email for comment on Monday.
Those who jointly made the submission included major Republican Party appointees.
They include John McKay, who served as federal prosecutor for the Western District of Washington in the George W. Bush Administration; Trevor Potter, former chairman of the Federal Election Commission, who was appointed by President George H.W. Bush; Alan Charles Raul who served as Associate Counsel to President Reagan and Patrick Fitzgerald, former federal prosecutor for the Northern District of Illinois in the George W. Bush and Obama Administrations.
The submission states that those making the submission include "former prosecutors, elected officials, other government officials, constitutional lawyers, and an organization dedicated to the rule of law who have spent decades defending the Constitution, the interests of the American people, and the rule of law."
It said they have "an interest in the proper scope of executive power and the faithful enforcement of criminal laws enacted by Congress."
"The Court should reject as a matter of law Defendant Donald J. Trump's contention that the Special Counsel's appointment is unlawful," their submission states.
They also note that Article II of the U.S. constitution "provides that the President must appoint 'principal officers' with the advice and consent of the Senate, but Congress may vest the power to appoint 'inferior officers' in the President alone without the Senate's consent" or the consent of the federal courts.
It then notes that Congress has, by law, "vested authority in the Attorney General to appoint the Special Counsel as an inferior officer."
As the Attorney General gets his power from the president, it is entirely legal to appoint Smith, it explains.
"This Court should not adopt a novel and unwarranted approach to resolving whether the Attorney General lawfully appointed the Special Counsel," it adds.
"The Special Counsel is not a principal officer because, by law, he is subordinate to the Attorney General."
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more