Gaetz questions Jack Smith's authority to keep up Trump probes after judge calls him 'unlawfully appointed'

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FIRST ON FOX: Rep. Matt Gaetz, R-Fla., is writing to Attorney General Merrick Garland to question the legitimacy of special counsel Jack Smith’s continued probing of former President Donald Trump.

Gaetz, one of Trump’s closest allies in Congress, asked Garland for "any written authorization" or other documentation regarding Smith’s continued efforts despite his case against the ex-president getting thrown out by a federal judge in July.

"On August 27, 2024, Special Counsel Jack Smith filed a superseding indictment against former President Donald Trump in federal district court in the District of Columbia. One day later, he was arguing before the 11th Circuit Court of Appeals, attempting to overturn a federal district judge’s finding that he was unlawfully appointed by you," Gaetz wrote in the brief letter.

"It is unclear what authority Special Counsel Smith has to file either of these briefs or to provide services to the Department of Justice."

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Rep. Matt Gaetz, right, is questioning the legitimacy of special counsel Jack Smith's recent legal moves after he was ruled to have been illegitimately appointed. (Getty Images)

Smith’s appointment as special counsel was deemed unlawful by Florida-based U.S. Judge Eileen Cannon, who said his lack of Senate confirmation for the role made him illegitimate. 

Cannon, who was appointed by Trump, had been overseeing Smith’s prosecution of the former president over his handling of classified documents found at Mar-a-Lago.

Smith filed a response with the 11th Circuit Court of Appeals, arguing Cannon was wrong in her assessment of the special counsel role, arguing "precedent and history" were on his side, as well as a "long tradition of special-counsel appointments by Attorneys General and Congress’ endorsement of the practice."

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Former President Donald Trump's congressional allies have publicly pushed back against the prosecutions against him. (Scott Olson/Getty Images)

Amid that court battle, Smith also filed a superseding indictment in a separate probe he is conducting into the ex-president, investigating whether Trump conspired to overturn the 2020 election. Smith had filed an amended indictment in that prosecution after the recent Supreme Court ruling that presidents are afforded wider immunity privileges.

However, Gaetz questioned whether Smith even had the legal footing to file either of those motions. 

His letter asked Garland whether he consulted the deputy attorney general and existing public integrity guidelines before Smith filed the superseding indictment.

If so, Gaetz asked him to "provide any records of the Deputy Attorney General’s Office or the Office of the Attorney General authorizing the Office of Special Counsel to file the Aug. 27, 2024, superseding indictment."

Trump has so far denied any wrongdoing in any of the prosecutions against him.

His congressional allies like Gaetz have been key defenders – Gaetz has heaped skepticism on Trump’s legal trials, and House GOP Conference Chair Elise Stefanik, R-N.Y., has filed a flurry of ethics complaints against judges overseeing Trump cases in New York.

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Rep. Marjorie Taylor Greene, R-Ga., another Trump ally, has spearheaded GOP pressure in the House to defund Smith’s office.

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It is not fully clear yet how Trump’s criminal and civil proceedings will affect his bid for re-election, with less than two months until Election Day.

The Department of Justice did not immediately return a request for comment on Gaetz’s letter.