Scrutiny Over Jack Smith's Potentially 'Illegal' Appointment Could Undermine Trump's Prosecution

The constitutionality of the appointment of special counsel Jack Smith will be tested 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, he will to listen arguments on June 21 on whether the entire case should be dismissed based on Smith's allegedly “illegal” appointment. Trump's lawyers argue that Smith, a private citizen neither appointed by the president nor confirmed by the Senate at the time of his November 2022 date by Attorney General Merrick Garland, does not have the authority to even press charges.

trump faces 41 felonies in his Florida case. He was initially accused last June on charges related to his handling of classified documents.

“The Appointments Clause does not allow the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to exercise the taxing power of the United States,” Trump's lawyers argued in February. movement. “As such, Jack Smith lacks the authority to prosecute this action.”

Smith argues history supports his appointment, noting that the Supreme Court held in its 1974 case United States v. Nixon “that the attorney general has the legal authority to appoint a special prosecutor.”

“The D.C. Circuit recognized precisely this conclusion when it held that the acting attorney general had the statutory authority to appoint special counsel Mueller,” he wrote.

Trump's lawyers say Smith got it wrong: The Supreme Court's Nixon ruling characterized “special prosecutors” as “subordinate officers,” which exceeds Smith's current authority.

“Attorney General Garland stated that Smith's appointment was intended to promote independence, and the Office of Special Counsel has insisted that 'coordination with the Biden Administration' is 'nonexistent,'” they wrote. “If Smith is an official subordinate com Nixon suggests, then these public claims 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 staunch supporters, including former Reagan administration attorney general Edwin Meese III, who previously joined amicus briefs filed on the issue in the case of Trump election interference in DC. circuit and Supreme court.

Justice Clarence Thomas asked for summary judgment question about Smith's appointment during oral arguments for Trump's presidential immunity appeal to the Supreme Court in April, though it was not an argument raised directly by Trump's lawyers in that case.

Next week will be the first time the potential legal issues surrounding Smith's appointment will receive a serious hearing.

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

Former attorneys general and law professors argue that the failure to appoint Smith “goes to the heart of the legitimacy of these proceedings.” While Smith argues that there is a long history of attorneys general appointing special counsels, his brief notes that “virtually every special prosecutor appointed over the past 40 years, other than Smith and Robert Mueller, has been legally appointed d 'under that clause because they were already serving as Senate-confirmed United States attorneys.”

South Texas College of Law Houston professor Josh Blackman will also present arguments during the hearing brief he presented in name from Professor Seth Barrett Tillman and the Landmark Legal Foundation who support Trump's motion.

Smith's temporary role can at best be described as an “employee” of the United States, not an “official of the United States,” they argue in the brief. If he is legally allowed to continue in office, he can do so only “under the normal supervision of the politically responsible United States Attorney for the Southern District of Florida.”

On the other hand, Cannon granted time for the legal scholar Matthew Seligman present arguments on behalf of the above fiscalelected officials and constitutional lawyers who believe it is “demonstrably wrong” to argue that Smith's appointment was illegal.

“The Appointments Clause of the Constitution empowers Congress to authorize the Attorney General, as head of the Department of Justice, to appoint lower officials, including the special counsel,” his amicus said. states.

Trump's other federal case brought by Jack Smith in Washington DC for alleged efforts to overturn the 2020 election is also on hold pending the Supreme Court's decision on Trump's presidency. immunity appeal

In Georgia, the racketeering case brought against Trump and co-defendants by Fulton County District Attorney Fani Willis has been on pause pending an appeals court decision on Willis' possible disqualification. Defendants sued Willis financially benefited of appointing Nathan Wade, with whom she had a romantic relationship, as special prosecutor when he took her on vacation with the funds obtained for his position.

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

The question of Smith's appointment has implications that extend beyond him or Trump. Calabrese he wrote in a December Reason column that Smith's national jurisdiction makes him “more powerful” than any of the 93 US attorneys confirmed by the Senate.

“We don't want future US attorneys general, like the ones Donald Trump might appoint if he's re-elected in 2024, to be able to pick any tough thug lawyer off the street and empower him the way Attorney General Merrick Garland has empowered private citizen Jack Smith,” Calabresi wrote. “Think what that would have done during the McCarthy era or the Grant, Harding, Truman or Nixon administrations in which an attorney general was corrupt.”

(Featured Image Media Credit: Screenshot/CSPAN)

  All republished articles must include our logo, our reporter’s byline and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact [email protected].

Katelynn Richardson's latest posts (see everything)

We have zero tolerance for comments that contain violence, racism, profanity, profanity, doxing, or rude behavior. If a comment is spam, instead of replying to it, click the ∨ icon below and to the right of that comment. Thank you for engaging with us in a fruitful conversation.