Julie Kelly: My explainer on the explosive FBI document unsealed today in southern Florida in Special Counsel Jack Smith’s espionage and obstruction case against Donald Trump. What country is this? – Declassified
Days before Attorney General Merrick Garland appointed special counsel Jack Smith to investigate former President Donald Trump, experts questioned the necessity of such an appointment. Concerns were raised about whether the appointment would undermine the Justice Department’s appearance of independence from politics and whether it would slow down the investigation. These concerns have now materialized, though not for the predicted reasons.
NEW: Trump's latest motion to dismiss classified docs case just hit the docket.
Trump accuses Jack Smith of prosecutorial abuse and denial of due process.
Trump again accuses Biden White House of colluding with National Archives to concoct the case: pic.twitter.com/AfUmu50hzE
— Julie Kelly 🇺🇸 (@julie_kelly2) May 21, 2024
On June 22, U.S. District Court Judge Aileen Cannon will hear arguments on a motion to dismiss the classified documents case against Trump based on the unlawful appointment of the special counsel. Experts who support this legal theory have indicated they plan to participate as amici curiae, or friends of the court.
Special counsels have been appointed by attorneys general since before the establishment of the Justice Department in 1870. A statute specifically set guidelines for the hiring and payment of outside attorneys as special counsel. Following the Watergate scandal, Congress decided there was a need for a truly independent prosecutor to investigate senior executive branch personnel, including the president. This led to the 1978 ethics bill that created the Office of Independent Counsel. Although controversial, the law was reformed and reauthorized multiple times before expiring in 1999. Just before its expiration, Attorney General Janet Reno established regulations for appointing special counsel.
The Justice Department’s regulations allow the attorney general to appoint a special counsel if a case presents a conflict of interest for the department or other extraordinary circumstances. In recent years, several special counsels have been appointed, including Robert Mueller in 2017 to investigate Russian interference in the 2016 presidential election, John Durham in 2020 to investigate the investigation of the 2016 election, Jack Smith in 2022 to investigate matters related to Trump, Robert Hur in 2023 to investigate classified records at properties of President Joe Biden, and David Weiss to investigate Hunter Biden.
Just IN: More videos of UHaul that released dozens of pink balloons in the shape of male genitalia with the faces of DA Alvin Bragg, Judge Juan Merchan, and Special Counsel Jack Smith on them. 🤣 pic.twitter.com/My47IlINRn
— MAGA Elvis 🇺🇸 (@BenStanton77) May 16, 2024
When Trump appealed his presidential immunity defense to the Supreme Court, former Attorney General Edwin Meese III submitted an amicus brief arguing that the high court should first settle whether a private citizen can be given the authority to impanel a grand jury, investigate, and prosecute a former president. Meese, along with constitutional law scholars Steven Calabresi and Gary Lawson, contends that Garland had no authority to grant Smith such powers, as attorneys general lost that power in 1999. They argue that the correct procedure would have been to appoint a currently serving U.S. Attorney or an outside special counsel serving under a U.S. Attorney.
The Appointments Clause of the Constitution states that the president has the authority to appoint principal officers, whose appointments must be established by Congress and confirmed by the Senate. Congress can allow department heads to appoint inferior officers. The amici argue that Smith wields the power of a principal officer without being appointed through the lawful process required under the Appointments Clause. They assert that Smith’s appointment is invalid, and his actions as special counsel are unlawful.
Professor Seth Barrett Tillman, in a separate amicus brief, argues that Smith is not an officer but rather an employee of the Justice Department, as his position is not permanent. Supreme Court precedent requires that officers of the United States hold positions with tenure, duration, emolument, and duties. Since Smith’s position is temporary, Tillman argues his appointment is unlawful.
Biden is arguing that his testimony to Special Counsel Hur is privileged and confidential. @stinchfield1776 calls him out: “This is a criminal investigation. You knew you were being taped…If you were too dumb to say something stupid, then that’s on you.” pic.twitter.com/pyBirT3gBk
— Sean Spicer (@seanspicer) May 21, 2024
Smith contends that the attorney general has statutory authority to appoint special counsel, as the Appointments Clause allows department heads to appoint inferior officers. He points to Justice Department regulations and argues that funding is not an issue, as Congress has provided for the necessary expenses of investigations and prosecutions by independent counsel.
Trump’s attorneys have filed a motion in the Southern District of Florida, arguing that Smith’s appointment violated the Appointments Clause and lacks permanent funding. Meese, Calabresi, Lawson, and other experts have supported this motion. If the Supreme Court deems Smith’s appointment unconstitutional, any actions taken by him could be null and void.
Allowing Smith to continue his prosecution could result in a conviction being overturned years later, solely because of the constitutional issue. Former federal prosecutor John O’Connor argues that Smith’s long tenure at the Justice Department undermines the independence his appointment was supposed to bring. O’Connor believes that Smith’s appointment was more about ensuring a vigorous prosecution against Trump rather than maintaining true independence.
Major Points
- Legal Controversy: Concerns arise over the legality of Attorney General Merrick Garland’s appointment of Jack Smith as special counsel to investigate former President Donald Trump, with arguments suggesting it violates the Appointments Clause of the Constitution.
- Special Counsel History: The practice of appointing special counsels dates back to before the Justice Department’s establishment, with significant reforms following the Watergate scandal, eventually leading to the creation of the Office of Independent Counsel in 1978.
- Arguments Against Appointment: Former AG Edwin Meese III and constitutional scholars argue that Garland lacked authority to grant Smith extensive prosecutorial powers, asserting that such powers should require Senate confirmation.
- Supreme Court Implications: If the Supreme Court deems Smith’s appointment unconstitutional, actions taken by him could be invalidated, potentially impacting the prosecutions of Trump and highlighting issues with the independence of special counsel appointments.
- Debate Over Independence: Critics argue that Smith’s prior ties to the Justice Department compromise the intended independence of his role, suggesting that a truly independent prosecutor might have approached the Trump investigation with greater discretion and moderation.
By Celia Mackey – Reprinted with Permission of Whatfinger News
