'Load of nonsense': Ex-prosecutor explains why Trump’s gambit against Jack Smith is doomed

Attorneys representing President Donald Trump are making a big gamble on being able to have Department of Justice special counsel Jack Smith removed as prosecutor in the ex-president's two federal criminal cases. But one legal expert thinks that strategy is unlikely to bear fruit.

During his hearing in U.S. District Court in Washington, D.C. earlier this week, Trump's lawyers made it clear that they aim to challenge the constitutionality of Smith's appointment as special counsel. But as former U.S. Attorney Barbara McQuade pointed out in a recent interview on MSNBC's the Katie Phang show, Judge Tanya Chutkan already made it clear to the defense that their argument will almost certainly be immediately rejected.

Melissa Murray — filling in for Phang on Saturday — noted that Trump's lawyers were citing an argument by Supreme Court associate justice Clarence Thomas that Smith was not properly appointed as special counsel. She then asked McQuade her thoughts on a sitting Supreme Court justice "acting as a kind of shadow defense counsel."

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"What a load of nonsense," McQuade remarked. "Judge Chutkan was really not having any of it... She said: 'You know, the D.C. Circuit [Court of Appeals] said the presidential appointment of a special council is perfectly lawful. You know that right, before you file this motion?'

"But the attorneys for Donald Trump, as you say, pointed out to this concurring opinion by Clarence Thomas which really did come out of nowhere," she continued, calling it "an issue that had not been raised by either party, and had not been briefed and volunteered it."

As McQuade noted, U.S. District Judge Aileen Cannon — whom Trump appointed to the bench in the Southern District of Florida in the final months of his presidency — also cited Thomas' opinion to justify throwing out Smith's 37-count classified documents indictment in July. Smith is appealing Cannon's decision to the 11th Circuit Court of Appeals, which has overturned her rulings on two separate occasions in Trump-related matters.

According to Thomas, Smith is not a duly appointed special counsel because he wasn't confirmed by the U.S. Senate. Of course, multiple other special counsels also conducted investigations and indicted numerous defendants despite not being confirmed by the Senate. This includes special counsels Robert Hur, Robert Mueller, Kenneth Starr, John Danforth and Patrick Fitzgerald, among others.

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"It seems to me inappropriate for a Supreme Court justice to be telegraphing to the world how he might rule on some issue that's not before the court," McQuade added. But Judge Chutkan, to her credit, was not taking the bait."

At that hearing, Chutkan acknowledged that it would likely be "months" before the D.C. election interference case went to trial. Smith revised his initial four-count indictment to account for the Supreme Court's decision in the Trump v. United States case that granted him absolute broad criminal immunity for all "official acts." However, lower court judges like Chutkan have discretion over what defines an "official act."

Watch McQuade's segment below, or by clicking this link.

READ MORE: 'Pared away all official conduct': Expert says Jack Smith's new indictment is immunity-proof