Is Jack Smith's Appointment Illegal?

[Geee]

DeClassified

 

Jack Smith is not “assisting” superiors at the DOJ—he is running a multi-million-dollar prosecution and acting as if he was U.S. Attorney Jack Smith.

 

 

Southern Florida has seen its share of hurricanes, but an earthquake may soon hit the Treasure Coast area as a result of Donald Trump’s motion seeking to dismiss his documents indictment based upon Jack Smith’s alleged illegal appointment as Special Counsel.  U.S. District Court Judge Aileen Cannon has set aside two full days (Friday and Monday) to hear arguments addressing whether Smith has the legal authority to prosecute the former president, a clear sign that she perceives Trump’s argument as tenable. 

The Democrat “lawfare” team should be nervous.

The argument that Attorney General Merrick Garland lacked authority to appoint Jack Smith as Special Counsel to prosecute Trump first surfaced in an amicus brief filed by former Attorney General Edwin Meese in Trump’s immunity appeal (now pending before the U.S. Supreme Court).  Meese’s argument emphasizes that Smith has been vested with sweeping powers equivalent to the 93 presidentially appointed (and Senate-confirmed) U.S. Attorneys.  According to Meese, Smith has no constitutional authority to act as an unofficial 94th U.S. Attorney because he is not, unlike U.S. Attorneys, a presidentially appointed “officer of the United States” as that term is used in Article 2, Section 2, Clause 2 of the Constitution. 

No one suggests that Smith--a private citizen who AG Garland plucked out of an international war crimes tribunal at The Hague—can justify his appointment via the Constitution, which makes no mention of a Special Counsel.  In court filings, however, Smith countered Meese’s arguments by relying on federal statutes that authorize AG Garland to retain “special” attorneys to assist in the prosecution of cases.

Smith also relies on a 2019 case out of the anti-Trump D.C. Circuit, which rejected a similar challenge to Russia-hoax Special Prosecutor Robert Mueller’s appointment.   The D.C. Circuit opinion, however, is of dubious value as it glossed over several important arguments Meese and Trump’s legal team are now making and is, of course, not binding on Judge Cannon, who sits in the Eleventh Circuit. 

The D.C. Circuit’s analysis, which Smith latches on to, points to federal statutes that empower the Attorney General to appoint “special” attorneys to prosecute cases which, Smith argues, authorizes his appointment as “Special” Counsel.    Smith correctly notes that the Department of Justice (DOJ) for decades has routinely hired “Special Assistant U.S. Attorneys” or “SAUSAs” to prosecute felony cases.  Smith’s point: If the AG can retain private citizens to investigate and prosecute drug dealers and terrorists, it certainly can do the same with Trump’s documents case.

To understand the fallacy of Smith’s argument, a little background is necessary. 

How We Got Here

 

Until 1999, the appointment of an “Independent Counsel” to investigate alleged wrongdoing was not particularly controversial, at least as to its legality.  In 1978, Congress enacted the Ethics in Government Act, a post-Watergate statute that authorized the appointment of Independent Counsels.  Armed with congressional authorization, prior AGs sought the appointment of Independent Counsels, e.g., Lawrence Walsh and Ken Starr, from outside the DOJ.

In the aftermath of Iran-Contra and the Monica Lewinsky scandal, however, Republicans and Democrats allowed the Ethics in Government Act to expire.  To fill the void, Attorney General Janet Reno promulgated the infamous “Reno Regulations,” which authorize the Attorney General to appoint a “special counsel” from “outside the Government” to prosecute crimes when certain conflicts of interest arise.  It was the Reno Regulations that allowed for Smith’s hiring as Special Counsel.