Scrutiny Over Jack Smith’s Potentially ‘Unlawful’ Appointment Could Undermine His Prosecution Of Trump

The constitutionality of special counsel Jack Smith’s appointment will be put to the test next week during a hearing before U.S. District Court Judge Aileen Cannon.

Cannon, who already indefinitely postponed former President Donald Trump’s classified documents trial in May, will hear arguments June 21 on whether the entire case should be dismissed based on Smith’s allegedly “unlawful” appointment. Trump’s attorneys argue Smith, a private citizen neither nominated by the president nor confirmed by the Senate at the time of his November 2022 appointment by Attorney General Merrick Garland, lacks the authority to even bring charges.

Trump faces 41 felony counts in his Florida case. He was initially indicted last June on charges relating to his handling of classified documents.

“The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States,” Trump’s attorneys argued in a February motion. “As such, Jack Smith lacks the authority to prosecute this action.”

Smith argues history supports his appointment, noting the Supreme Court held in its 1974 United States v. Nixon case “that the Attorney General has the statutory authority to appoint a Special Prosecutor.”

“The D.C Circuit recognized precisely that conclusion when holding that the Acting Attorney General had the statutory authority to appoint Special Counsel Mueller,” he wrote.

Trump’s attorneys say Smith has it wrong: the Supreme Court’s Nixon ruling characterized “special prosecutors” as “subordinate officers,” who Smith’s current authority exceeds.

“Attorney General Garland declared that Smith’s appointment was intended to promote independence, and the Special Counsel’s Office has insisted that ‘coordination with the Biden Administration’ is ‘non-existent,’” they wrote. “If Smith is a subordinate officer as Nixon suggests, then these public assertions are false because Smith serves at the pleasure of the Attorney General and President Biden, who is exercising Article II authority to oversee the prosecution of his political rival and leading candidate in the 2024 presidential election.”

Trump’s argument against Smith’s appointment has some strong supporters, including former Reagan administration Attorney General Edwin Meese III, who previously joined amicus briefs filed on the issue in Trump’s election interference case at the D.C. Circuit and Supreme Court.

Justice Clarence Thomas asked a brief question about Smith’s appointment during oral arguments for Trump’s presidential immunity appeal at the Supreme Court in April, though it was not an argument directly raised by Trump’s attorneys in that case.

Next week will be the first time potential legal issues surrounding Smith’s appointment are given a serious hearing.

During oral arguments, Cannon will allow three third parties to participate. The first, Attorney Gene Shaerr, filed an amicus brief on behalf of former Attorneys General Edwin Meese III and Michael B. Mukasey, along with law professors Steven Calabresi and Gary Lawson.

The former attorneys general and law professors argue the flaw in Smith’s appointment “goes to the heart of the legitimacy of these proceedings.” While Smith argues that there is a long history of attorneys general appointing special attorneys, their brief notes that “nearly all the special prosecutors appointed during the past 40 years — aside from Smith and Robert Mueller — have been lawfully appointed pursuant to that Clause because they were already serving as Senate-confirmed U.S. Attorneys.”

South Texas College of Law Houston professor Josh Blackman will also present arguments during the hearing for the brief he filed on behalf of professor Seth Barrett Tillman and Landmark Legal Foundation supporting Trump’s motion.

Smith’s temporary role can be described, at best, as an “employee” of the United States, not an “Officer of the United States,” they argue in the brief. If he is legally allowed to continue in his position, he can only do so “under the normal supervision of the politically accountable United States attorney for the Southern District of Florida.”

On the other side, Cannon granted time for legal scholar Matthew Seligman to present arguments on behalf of former prosecutors, elected officials and constitutional attorneys who believe it is “demonstrably incorrect” to argue Smith’s appointment was unlawful.

“The Appointments Clause of the Constitution empowers Congress to authorize the Attorney General, as the head of the Department of Justice, to appoint inferior officers including the Special Counsel,” their amicus brief states.

Trump’s other federal case brought by Jack Smith in Washington D.C. for allege efforts to overturn the 2020 election is also on hold pending the Supreme Court’s decision in Trump’s presidential immunity appeal.

In Georgia, the racketeering case brought against Trump and co-defendants by Fulton County District Attorney Fani Willis has been paused pending an appeals court ruling on Willis’ potential disqualification. Defendants alleged Willis financially benifited from appointing Nathan Wade, who she was romantically involved with, as special prosecutor when he took her on vacations using funds earned from his position.

A Manhattan jury convicted Trump in May on 34 counts of falsifying business records in the case brought by Democratic District Attorney Alvin Bragg.

The question about Smith’s appointment has implications that extend beyond him or Trump. Calabresi wrote in a December Reason column that Smith’s nationwide jurisdiction makes him “more powerful” than any of the 93 Senate-confirmed U.S. Attorneys.

“We do not want future U.S. Attorney Generals, such as the ones Donald Trump might appoint, if he is re-elected in 2024, to be able to pick any tough thug lawyer off the street and empower him in the way Attorney General Merrick Garland has empowered private citizen Jack Smith,” Calabresi wrote. “Think of what that would have led to during the McCarthy era or in the Grant, Harding, Truman, or Nixon Administrations in all of which an Attorney General was corrupt.”

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