By Sean O'Driscoll
Senior Crime and Courts Reporter
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Donald Trump's attorneys are asking a federal judge to dismiss his election fraud case, arguing that the office of special counsel Jack Smith is unconstitutional, with the former president saying he would "fire him" if elected.
"Everything that Smith did since Attorney General (Merrick) Garland's appointment, as President Trump continued his leading campaign against President Biden and then Vice President Harris, was unlawful and unconstitutional," Thursday's motion states.
Trump was indicted in Washington, D.C. on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. The Republican presidential nominee has pleaded not guilty and said the case is part of a political witch hunt.
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In their new filing submitted in Washington, D.C, Trump's lawyers argue that Garland was "following improper urging from President Biden to target President Trump, as reported at the time in 2022, and repeated recently by President Biden through his inappropriate instruction to 'lock him up' while Smith presses forward with the case unlawfully as the Presidential election rapidly approaches."
The filing was referencing President Biden's speech in New Hampshire on Tuesday in which he said that Trump should be locked up "politically" and clarified that he was not seeking to lock Trump in a prison.
Newsweek sought email comment from Trump's attorney and Smith's office on Friday.
Smith's team is expected to file a response motion in the coming days.
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Trump's filing references Judge Aileen Cannon's earlier dismissal of Trump's classified documents case in Florida.
"Notwithstanding Judge Cannon's findings, the Special Counsel's Office has continued to pursue and spend money on this case, and the Office is directly pursuing the appeal of Judge Cannon's ruling rather than the Department of Justice. These actions are ultra vires, and funded from a source of money that Smith and the Office should not be permitted to access," it states.
It came only hours after Trump said that, if elected president, he would fire Smith.
"Oh, it's so easy. It's so easy. I would fire him within two seconds," Trump told conservative radio host Hugh Hewitt on Thursday morning.
Trump was facing 40 federal charges in Cannon's court over his alleged handling of sensitive materials seized from his Mar-a-Lago estate in Palm Beach, Florida, after leaving the White House in January 2021. He was also accused of obstructing efforts by federal authorities to retrieve them.
The Republican presidential nominee had pleaded not guilty and has said the case is part of a political witch hunt.
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