President Trump is seeking to have the criminal case against him regarding January 6 dismissed, citing a judge’s ruling that threw out the classified documents case on the grounds that the special counsel, Jack Smith, was illegally appointed.

In a filing on Thursday, Trump’s lawyers asked the federal judge presiding over the January 6 case at Washington, D.C., Tanya Chutkan, to dismiss the charges on the grounds that Mr. Smith’s appointment in November 2022 by Attorney General Garland was not lawful. 

The filing comes after Judge Aileen Cannon, who was overseeing the criminal case against the former president, brought by Mr. Smith, involving his handling of classified documents at Mar-a-Lago, dismissed the case in July. Judge Cannon, who was appointed by Trump, found that the Constitution does not give Mr. Garland the authority to appoint “a federal officer with the kind of prosecutorial power wielded.”

“President Donald J. Trump respectfully requests leave to file this proposed motion to dismiss the Superseding Indictment and for injunctive relief—which is timely and, alternatively, supported by good cause—based on violations of the Constitution’s Appointments and Appropriations Clauses,” the former president’s lawyers wrote in their motion to dismiss the January 6 case. “The proposed motion establishes that this unjust case was dead on arrival— unconstitutional even before its inception.”

The motion accuses Mr. Garland of violating the Appointments Clause by “naming private-citizen Smith to target President Trump, while President Trump was campaigning to take back the Oval Office from the Attorney General’s boss, without a statutory basis for doing so.”

Skeptics of the authority to appoint Mr. Smith highlight the portion of the Appointments Clause that states that presidents “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” The clause also outlines a process by which the president or “heads of departments” can appoint “inferior officers.”

At the time he was appointed special counsel, Mr. Smith, a former federal prosecutor, was prosecuting war crimes at the Hague and was not a government employee who’d been confirmed by the Senate.

Critics of Mr. Smith’s appointment argue that an attorney charged with prosecuting federal crimes has to be a principal officer of the United States, the category of officials the first part of the Appointments Clause addresses, due to the power they wield. However, President Biden did not appoint Mr. Smith, nor is the office of special counsel established by law.

There was a law governing independent counsels, but it expired in 1999. Since then, special counsels — a less powerful version of the independent counsel role, which was blamed for the runaway prosecutions of the Clinton years — have been appointed through a Department of Justice regulation, which is not the same as a law passed by Congress. 

In addition to the Appointments Clause, the filing says Mr. Garland violated the Appropriations Clause by “relying on an appropriation that does not apply in order to take more than $20 million from taxpayers—in addition to Smith improperly relying on more than $16 million in additional funds from other unspecified ‘DOJ components’—for use in wrongfully targeting President Trump and his allies during the height of the campaign season.”

Trump’s lawyers say the special counsel has “operated with a blank check by relying on an inapplicable permanent indefinite appropriation that was enacted in connection with a reauthorization of the Independent Counsel Act in 1987.”

“Smith was not appointed pursuant to that Act, which expired in 1999. The appropriation contemplates the possibility of appointment by some ‘other law,’ but no ‘other law’ authorized Smith’s appointment,” the attorneys say in the filing. “The appropriation also requires that the prosecutor be ‘independent,'”‘ in the very particular, rigorous sense that attorneys appointed pursuant to the defunct Independent Counsel Act were meant to be independent.” 

Trump’s lawyers urged Judge Chutkan to dismiss Mr. Smith’s superseding indictment “with prejudice” and issue an “injunction against additional spending by Smith … to prevent ongoing irreparable harm.”

Earlier this year, Justice Clarence Thomas raised doubt about the special counsel’s appointment in his concurring opinion in the Supreme Court’s ruling on executive immunity. He wrote, “If there is no law establishing the office that the special counsel occupies, then he cannot proceed with this prosecution.”

Judge Cannon agreed in July with the argument that Mr. Smith’s appointment was unconstitutional. In addition, she dismissed the entire case because it was the result of a “defective appointment” and “unlawful exercises of executive power.” Additionally, she found that the appointment ran afoul of the Appropriations Clause and that Mr. Smith had “unlawfully drawn funds” because he was not legally appointed.

Mr. Smith appealed the ruling, saying that “precedent and history” and the “long tradition of special-counsel appointments by Attorneys General” support his appointment. The 11th Circuit Court of Appeals will weigh whether to uphold Judge Cannon’s ruling. 

While Judge Cannon ruled in Trump’s favor in the documents case, the former president will likely have a harder time persuading Judge Chutkan to toss the January 6 case.

Trump’s lawyers have previously signaled they would seek to have the case thrown out over the questions about whether Mr. Smith’s appointment was legal. However, Judge Chutkan, an Obama appointee, said she did not find Judge Cannon’s ruling “particularly persuasive.”

She has consistently ruled in Mr. Smith’s favor, including ruling that Trump did not have immunity from prosecution for official acts he performed as president — a ruling that was overruled by the Supreme Court. She allowed Mr. Smith to release two tranches of damaging material about Trump’s conduct on and around January 6, 2021, saying she wasn’t bothered by the proximity of Election Day.

Judge Chutkan has also said from the bench that “presidents are not kings” and handed down harsh prison sentences to January 6 protesters who were prosecuted by Mr. Garland’s justice department. Earlier this week, Trump called her “evil” in an interview with Dan Bongino.

Mr. Smith will have until October 31 to respond to Trump’s motion to dismiss the case.

Trump has pleaded not guilty to all the charges in Mr. Smith’s case against him. He also told a radio host, Hugh Hewitt, that he would fire the special counsel “within two seconds” if he wins the election.