Jack Smith says Clarence Thomas’ attack on his appointment should not factor into classified documents case

(CNN) — Special counsel Jack Smith told the judge in the classified documents case in Florida that Supreme Court Justice Clarence Thomas’ criticism of his appointment should have no bearing on the criminal case against former President Donald Trump.

In a brief filing Friday, Smith said that Thomas’ writing in the presidential immunity case – in a concurrence that no other justice joined – isn’t binding on US District Judge Aileen Cannon.

Nor does it provide “a sound basis to deviate from the uniform conclusion of all courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel,” Smith said.

In a filing last week, Trump’s lawyers brought to Cannon’s attention both the Supreme Court’s immunity ruling and the concurrence that Thomas wrote in that dispute. That ruling directly arose out of the election subversion case against Trump in Washington, DC, but may have an impact on all four criminal cases against him.

Trump’s legal team told Cannon that Thomas’ concurrence bolstered the former president’s arguments for dismissing the charges in Florida on the basis that Smith was illegally appointed and that the funding of his office violates the Constitution.

In response on Friday, Smith said that he agreed with Trump that both sides should file more briefing on how the high court’s immunity ruling affects the documents case.

Trump has claimed he’s entitled to presidential immunity and argued the case should be dismissed, despite the fact that almost all of the alleged conduct took place after he left office.

Cannon has not signaled yet how she’ll weigh the Supreme Court’s new ruling in the case before her. She has asked the parties for more briefing on how the case should move forward.

CNN’s Holmes Lybrand contributed to this report.

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