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Jack Smith, Donald Trump

Jack Smith (AP Photo/Jacquelyn Martin), Donald Trump (AP Photo/Alex Brandon, File)

The man appointed to prosecute the government’s case against Donald Trump over his alleged wrongful retention of classified documents responded to “meritless” arguments from former U.S. Attorney General Edward Meese III, a Federalist Society co-founder, and Citizens United asserting that he lacks legal authority to prosecute the former president.

The filing from special counsel Jack Smith came on Friday, one day after U.S. District Court Judge Aileen Cannon refused Trump’s attempt to dismiss the first 32 counts in his superseding indictment as being “constitutionally vague” under the Espionage Act. Cannon has not yet ruled on Trump’s motion to dismiss based on his claim that while in office, the Presidential Records Act gave him the authority to simply declare classified documents as personal documents.

Meese, who in 1985 was appointed as the 75th U.S. Attorney General by President Ronald Reagan and Citizens United, the group best known for gutting federal campaign finance law via the U.S. Supreme Court’s landmark 2010 decision, were joined in the amicus brief by Boston University School of Law Professor Gary Lawson and Northwestern Pritzker School of Law Professor Steven Calabresi — who cofounded one of the three original chapters of the Federalist Society.

The “Meese Amicus,” as Smith refers to it in his filing, largely focused on issues already raised by Trump’s legal team — that the U.S. Attorney General does not have the statutory authority to appoint a special counsel.

“Smith does not have authority to prosecute this case,” the amici argued. “Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices. But neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. He wields tremendous power, answerable to no one. And that is a serious problem for the rule of law — whatever one may think of former President Donald Trump or the conduct Smith challenges in the underlying case.”

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