Former FBI informant Alexander Smirnov asked a judge on Monday evening to toss his criminal case based on the surprise decision by a judge in Florida to dismiss former President Donald Trump's classified documents case over the legality of a special counsel appointment.
Smirnov's attorneys argued in a court filing that Judge Otis Wright should dismiss charges that Smirnov lied to the FBI because special counsel David Weiss, who is leading the prosecution, was allegedly unlawfully appointed.
"Mr. Smirnov respectfully asserts that the appointment of Mr. Weiss as Special Counsel in this case violates both the Appointments Clause and the Appropriations Clause of the United States Constitution," the attorneys wrote.
They cited Judge Aileen Cannon's decision to drop all 40 charges against Trump in Florida on Monday morning on the grounds that special counsel Jack Smith was unlawfully appointed.
Weiss's "instant appointment" is unconstitutional and "as a remedy, compels dismissal of the Indictment," Smirnov's attorneys wrote. They added that Weiss's office was not funded through the proper appropriations process in Congress.
Smirnov, who had worked as an informant for the FBI since 2010, was indicted in February over allegations that he fabricated information about the Biden family to hurt President Joe Biden's election chances in 2020.
Weiss, the U.S. attorney in Delaware, was appointed special counsel by Attorney General Merrick Garland to continue leading the investigation and prosecution of Joe Biden's son Hunter in August 2023, weeks after a plea deal fell through that led to a contentious stalemate between the first son and the Department of Justice. Weiss had been in charge of the Hunter Biden inquiry for roughly five years, but Garland granted him special counsel authority to operate more independently.
Weiss brought two separate indictments against Hunter Biden in September and December, and then brought the indictment against Smirnov as a byproduct of his inquiry into the first son.
Hunter Biden had attempted to have both of his cases tossed on the grounds that Weiss was unlawfully appointed as special counsel, but judges in each of the cases denied his requests.
Cannon's decision to toss out Trump's case was stunning partly because judges have routinely rebuffed arguments against attorneys general appointing special counsels. Cannon effectively ruled that both Congress and the executive branch need to have a say in special counsel appointments. The decision could serve to discredit other special counsel investigations, including, potentially, that of Weiss and Robert Hur, who investigated Joe Biden's handling of classified material.
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Smith's spokesman Peter Carr said in response to Cannon's decision that it "deviates from the uniform conclusion of all previous courts" and that the DOJ had authorized Smith to move forward with appealing it.
Smirnov, for his part, has asked Wright to hear arguments on his motion at a scheduled hearing at the end of August.
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