On the same day former President Donald Trump vowed that if elected he would immediately fire Jack Smith, his lawyers sought to move ahead with an effort to have the federal election interference case against Trump dismissed on the grounds that Smith had been illegally appointed to his job as special counsel.

The request to launch a fresh attack on the indictment brought by Smith charging Trump with seeking to overturn the results of the 2020 election came as the 2024 election sped toward its conclusion.

“The proposed motion establishes that this unjust case was dead on arrival — unconstitutional even before its inception,” Trump’s lawyers wrote in papers filed in U.S. District Court in Washington on Thursday.

The lawyers went on to say that they believe Attorney General Merrick Garland violated the Appointments Clause of the Constitution “by naming private citizen Smith to target President Trump, while President Trump was campaigning to take back the Oval Office from the attorney general’s boss, without a statutory basis for doing so.”

Trump’s lawyers were required to ask Judge Tanya Chutkan, who is overseeing the election case, for permission to file their motion in part because a federal appeals court in Washington had already weighed in on the question, ruling that the appointment of special counsels like Smith is in fact valid.

Both Chutkan and the appeals court are unlikely to look with much favor on Trump’s attempt to challenge Smith’s appointment.

Even tendering the request for permission to make the challenge was somewhat unusual, given that it was offered more than a year after Trump submitted his initial round of motions seeking to have the case dismissed. The request was only made after a ruling by a judge in Florida who used the same legal reasoning to kill Trump’s other federal case — the one in which he stands accused of illegally holding on to dozens of classified documents after he left office.

In their filing to Chutkan, Trump’s lawyers praised the ruling by the Florida judge, Aileen Cannon, to throw out the classified documents case over the constitutionality of Smith’s appointment as “thorough and well-reasoned.” Earlier this week, Cannon’s name appeared on a list prepared by some advisers to Trump identifying her as a possible choice for top legal positions in a Trump administration.

Smith has appealed Cannon’s ruling and Trump’s lawyers are scheduled to file their defense of her opinion to an appeals court in Atlanta on Friday.

One of the most striking aspects of the attempt by Trump’s lawyers to challenge Smith’s appointment in the election interference case is the way they cited as a legal authority a highly unusual move taken this summer by Justice Clarence Thomas, whose wife, Virginia, played a role in trying to keep Trump in office.

When the Supreme Court issued a ruling in July saying that Trump was immune from prosecution on some of the election subversion charges, Thomas joined the majority but advanced his own reason for making the decision: He went out of his way to suggest that Smith may have been given his job without legal basis, even though the issue, at that point, was not part of the underlying case.

Questions about whether Thomas’ role in deciding the issue of immunity amounted to a conflict of interest were raised almost immediately as it became clear that the Supreme Court would consider the question.