The Texas Public Policy Foundation (TPPF) has submitted an amicus brief that challenges the authority of special counsel Jack Smith to prosecute former President Donald Trump. This development follows a decision by District Judge Aileen Cannon, who earlier dismissed the classified documents case against Trump, citing improper appointment of Smith as an officer of the United States. The case is currently under appeal in the U.S. Court of Appeals for the Eleventh Circuit.

The brief, which includes representation from former Ninth Circuit Judge Alex Kozinski, argues that historical evidence indicates special counsels have traditionally been employees rather than officers. It references decisions from the Comptroller of the Treasury, an Attorney General opinion, congressional records, and court rulings to support this claim. According to TPPF, only officers are constitutionally permitted to exercise significant government powers like initiating criminal prosecutions.

Eric Heigis, attorney at TPPF’s Center for the American Future, stated: “This new evidence presents a clear message: mere employees like Jack Smith lack the power to initiate a criminal prosecution.” He further urged the Eleventh Circuit to consider this historical context and apply Article II’s appointments clause as originally intended.

TPPF describes itself as a non-profit free-market research institute based in Austin with a mission to protect and promote liberty and personal responsibility. The Center for the American Future within TPPF focuses on defending constitutional rights through legal action against perceived government overreach.