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.”

Buried in a lengthy filing opposing Donald Trump’s motion to dismiss Espionage Act charges for unconstitutional vagueness, special counsel Jack Smith said the former president cannot hide behind “Q clearance” assertions to undo a count for alleged willful retention of a “nuclear weaponry” document at Mar-a-Lago.

In their February motion to dismiss on grounds of unconstitutional vagueness, Trump lawyers singled out count 19 as a particular affront to a defendant they claimed had a “‘Q’ clearance” in the mind of the Department of Energy.

“As explained in the Defendants’ motions to compel discovery, after the Superseding Indictment was filed, the Special Counsel’s Office disclosed Energy Department records indicating that President Trump maintained the ‘Q’ clearance that is relevant to the document charged in Count 19 during the time period alleged in that Count,” the defense asserted. “Whatever §793(e) means—and that much is unconstitutionally unclear—the Authorization Clause does not prohibit possession of a document by the holder of a valid security clearance, and someone who is cleared to the appropriate level cannot willfully violate the statute.”

Recall: The nineteenth willful retention of national defense information count in the Trump indictment relates to an “Undated document concerning nuclear weaponry of the United States,” with a date of offense running from Joe Biden’s inauguration as president until Aug. 8, 2022, when the FBI searched Mar-a-Lago.

Jack Smith said Thursday, among his numerous responses on various issues, that the Trump team’s argument as to count 19 “lacks merit” — and for “several reasons.”

More Law&Crime coverage: Jack Smith hammers ‘fundamentally wrong’ Trump and Stephen Miller-backed arguments that the Presidential Records Act should make Mar-a-Lago prosecution go away

The first reason, Smith said, is that the indictment “properly tracks the statutory language and charges that Trump possessed the document charged in Count 19 without authorization and willfully retained it.” The next reason — and the special counsel said he was prepared to show this at trial — the clearance-related discovery the Trump team referred to only tends to confirm that his “Q clearance” disappeared “as a matter of law” at noon on Inauguration Day in 2021, regardless of what the Department of Energy’s records have to say:

Second, at trial the Government will show that the evidence identified by Trump shows that he did not possess a security clearance after the end of his term in office. As reflected in records produced in discovery and cited by Trump, “as a matter of law, the Q clearance granted to Donald J. Trump on February 9, 2017, terminated, by the conditions of its original grant, upon the completion of Mr. Trump’s term as President of the United States at 12:00 PM on January 20, 2021.” ECF No. 262, Ex. 59 at USA-01116848. Whether or not the Department of Energy’s (“DOE”) records were up to date or continued to reflect an active Q clearance after Trump’s term had ended, it has no bearing on Trump’s actual entitlement to access documents requiring a Q clearance.

The special counsel emphasized that “there is no legal basis to dismiss” the count because “even if Trump possessed a Q clearance at any time after his Presidency (which he did not), that would still not entitle him to possess the document charged in Count 19 at Mar-a- Lago[.]” Notably, the defense came up with “no evidence” in support of the notion that the former president was “aware at any time” of how the Department of Energy internally viewed his “Q clearance” status, Smith concluded.

Read the opposition here.

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