 She also says there's a problem with how his position was funded. She didn't get to that because she said, well, we're going to dismiss this with respect to the appointments clause. Smith was prosecuting the former president on 37 counts in this case, including the willful retention of national defense secrets in connection to documents held at his Mar-a-Lago estate. Supreme Court Justice Clarence Thomas actually brought up the issue of Smith's appointment in oral arguments for Trump's immunity case.