Donald Trump’s defense attorney, John Lauro, quickly corrected himself in court on Thursday after saying Supreme Court Justice Clarence Thomas had “directed” him to challenge special counsel Jack Smith’s authority in the election subversion case.
During a hearing in Washington, D.C., addressing an updated indictment brought by Smith against the former president following a Supreme Court ruling on presidential immunity, Lauro referenced concerns raised by Thomas in a note on that ruling as a reason the case should be dismissed.
The reference from Lauro is to a note from Thomas that he wrote in the concurrence regarding the immunity ruling. Some speculated that note was written to be seen by Judge Aileen Cannon, A Trump appointed judge who is presiding over the classified documents case against the former president in Florida.
In that note in July, Thomas wrote that “if this unprecedented prosecution [of Trump] is to proceed, it must be conducted by someone duly authorized to do so by the American people.”
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The note was used by Cannon when she tossed Trump’s classified documents case, arguing that Smith’s appointment was “unconstitutional.” The dismissal of the Florida case is facing an appeal.
Lauro cited the same reasoning as Cannon at the hearing on Thursday, saying that the court must decide on the issue of the special counsel’s authority “in light of Justice Thomas’ interest” in it.
Judge Chutkan told Lauro that she didn’t find Cannon’s decision very persuasive, to which the defense replied that Thomas had “directed” him to raise the issue.
“He directed you to do it?” Judge Chutkan asked, to which Lauro quickly clarified “Well, he didn’t direct us to.”
The judge said that Thomas’ concurrence was not binding and that there was precedent in the D.C. Circuit upholding the constitutionality of special counsel appointments.
Trump’s defense had technically missed a deadline to raise the issue regarding Smith—as pointed out by the prosecution—but the judge allowed the motion.
Lauro also tried to get the case dismissed on other grounds, including the expansion of presidential immunity as laid out by the Supreme Court earlier this year.
Both parties were then given more time to go over these developments.
Trump is charged with four felonies related to his claims that the 2020 election was stolen. He is accused of conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing and attempting to obstruct an official proceeding and conspiring against rights.
Trump has pleaded not guilty and did not appear in court Thursday.
The case was brought for a second time after the Supreme Court’s immunity ruling, which passed the case back to a lower court.
Smith’s office is asking the judge to only allow one additional appeal before a trial date is set, which would include the issue of presidential immunity.
In their updated indictment, prosecutors removed references to Trump using the Department of Justice in his efforts to overturn the 2020 election result, which would be under his Presidential remit, instead putting the blame on him as an individual.
