Jack Smith, Donald Trump (Smith photo via Saul Loeb for AFP, Trump photo via AFP)
A national security analyst flagged what she called a "bit of shade" buried in the Justice Department's response to Donald Trump's proposed motion to dismiss for injunctive relief based on the appointments and appropriations clause.
Trump's lawyers motioned to Judge Tanya Chutkan in the 2020 election case, saying the case should be dismissed because the special counsel wasn't legally appointed. He's previously made the argument and federal Judge Aileen Cannon agreed.
The Justice Department's filing noted that while Trump may cite Justice Clarence Thomas and Cannon, "neither that solo concurring opinion on a question that the parties did not brief or argue to the Supreme Court nor the unpersuasive out-of-circuit district court opinion binds this Court, and, in any event, '[d]efendants need not, and often do not, await a Supreme Court precedent directly in point before raising a constitutional challenge.'"
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In other words, explained legal analyst Adam Klasfeld on X, Smith argued Chutkan doesn't have to follow Thomas's comments because they don't apply to her.
National security analyst Marcy Wheeler also called out a footnote in which Smith and the Justice Department throw "a bit of shade" at Trump.
"...—and he appears to take the position that he cannot be investigated by anyone for anything once he has announced his candidacy," the footnote said.
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