Jack Smith’s Appointment Violated the Constitution, Some Legal Experts Argue
Jack Smith’s Appointment Violated the Constitution, Some Legal Experts Argue

By Catherine Yang

Days before Attorney General Merrick Garland appointed special counsel Jack Smith to investigate former President Donald Trump, experts who had been following the Justice Department investigations questioned its necessity. Mr. Smith was appointed on Nov. 18, 2022.

Would the appointment of an “independent” lead prosecutor undermine the Justice Department’s own appearance of independence from politics? Would the newly appointed prosecutor slow the case down?

Those concerns have now materialized, though not for the predicted reasons.

On June 22, U.S. District Court Judge Aileen Cannon will hear arguments on a motion to dismiss the classified documents case against President Trump based on the unlawful appointment of the special counsel. Experts who advanced this legal theory have told The Epoch Times they plan to participate as amici curiae, or friends of the court.

What Are Special Counsels For?

Attorneys general have been hiring special counsels since before the Justice Department was established in 1870, via a statute that specifically set guardrails on the hiring and payment of outside attorneys as special counsel.

A century later, Congress decided, with the Watergate scandal, there was a need for a truly independent prosecutor to investigate senior executive branch personnel, including the president. In 1978 Congress passed an ethics bill that created the Office of Independent Counsel.

While controversial, the law was reformed and reauthorized more than once before Congress let it expire in 1999.

Just before it expired, the Justice Department under Attorney General Janet Reno created its own set of regulations for appointing a special counsel.

The department determined that attorneys general may appoint a special counsel if a case “would present a conflict of interest for the Department or other extraordinary circumstances,” instructing the attorney general to then select someone from “outside the United States Government.”

These past few years, the Justice Department has found plenty of “extraordinary circumstances.”

In 2017, acting Attorney General Rod Rosenstein appointed special counsel Robert Mueller to investigate Russian interference in the 2016 presidential election.

In 2020, Attorney General William Barr appointed special counsel John Durham to investigate whether federal personnel violated the law in investigating the 2016 presidential.

In 2022, Mr. Smith was appointed to investigate matters related to President Trump.

In 2023, special counsel Robert Hur was appointed to investigate the possible unauthorized removal of classified records at properties of President Joe Biden, and special counsel David Weiss was appointed to take on the ongoing investigation into first son Hunter Biden.

Media tents and television satellite trucks are set up outside the E. Barrett Prettyman U.S. District Courthouse in Washington on July 27, 2023. (Drew Angerer/Getty Images)

Experts Weigh In

When President Trump appealed his presidential immunity defense to the Supreme Court, former U.S. Attorney General Edwin Meese III was quick to submit an amicus brief arguing that before the case could proceed, the high court should settle the matter of whether a private citizen can lawfully be given the authority to impanel a grand jury, investigate, and prosecute a former president.

Mr. Meese, arguing together with constitutional law scholars and professors Steven Calabresi and Gary Lawson, holds the position that Mr. Garland had no authority to grant Mr. Smith such “extraordinary criminal law enforcement power,” as attorneys general lost that power in 1999.

Mr. Meese, incidentally, was himself investigated by an independent counsel when the law was still in effect. The professors are experts in this niche matter, and in 2019 authored a paper arguing that the appointment of special counsel Robert Mueller was unlawful for the same reasons.

The Appointments Clause of the Constitution states that the president has the authority to appoint a number of officers that courts have come to deem “principal” or “superior” officers, whose appointments have to be established by Congress through law, and have their appointments confirmed by the Senate. It also states that Congress can, through law, allow department heads to appoint “inferior” officers.

The amici argue Mr. Smith wields the power of a “principal or superior officer” without being appointed through the lawful process as required under the Appointments Clause.

The correct avenue would have been to appoint a currently serving U.S. Attorney as special counsel, or to appoint an outside special counsel that serves under a U.S. Attorney, Mr. Meese, Mr. Calabresi, and Mr. Lawson argue.

“Smith is the classic ‘emperor with no clothes,’” their Supreme Court brief reads.

Attorneys for President Trump in a second case picked up on this argument, filing a motion in the Southern District of Florida. They argued that Mr. Smith’s appointment violated the Appointments Clause, and there is no permanent funding allocated to a special counsel office, therefore the indictment should be dismissed.

Mr. Meese, Mr. Calabresi, and Mr. Lawson filed another amicus brief in support of the motion in this case, as did other experts.

Former Attorney General Edwin Meese (R) delivers remarks after being awarded the National Medal of Freedom by President Donald Trump during a ceremony with his’s wife Ursula Herrick and other family members in the Oval Office at the White House on Oct. 8, 2019. (Chip Somodevilla/Getty Images)

In a separate amicus brief, professor Seth Barrett Tillman argued that not only is Mr. Smith not a principal or inferior officer, but he is right now really an “employee” of the Justice Department.

Mr. Tillman has written extensively on related issues, and argued that Supreme Court precedent shows that to be an officer of the United States requires that the position has permanency.

In a 1867 case, United States v. Hartwell, the Supreme Court defined the difference between a contract employee and officer. Justice Noah Swayne wrote that an office “embraces the ideas of tenure, duration, emolument, and duties.”

A decade later, the high court relied on these four factors in United States v. Germaine, updating the definition to find that officers must be in positions that are “continuing and permanent, not occasional or temporary.” The Germain decision was cited in subsequent cases that dealt with differentiating “officers” from “employees” of the United States.

“The nature of the special counsel’s position is that it disappears once this prosecution is over,” Mr. Tillman told The Epoch Times. “It’s not a permanent position; it is not a continuous position.”

And if Mr. Smith is not an officer, “his prosecuting anyone is entirely unlawful,” Mr. Tillman said. Also diverging from the previous group of amici, he posits that the case could be salvaged if handed over to a U.S. Attorney, with Mr. Smith working under that office.

Mr. Smith argued that the attorney general has statutory authority to appoint special counsel like himself, because the Constitution’s Appointments Clause permits department heads to appoint “inferior officers,” and Congress “has also provided for the Attorney General to ‘appoint officials … to detect and prosecute crimes against the United States.’”

The prosecutors pointed to the Justice Department’s set of regulations governing the appointment of special counsel as statutory authority, and argued the source of funding was a non-issue as Congress has enacted permanent indefinite appropriations to “pay all necessary expenses of investigations and prosecutions by independent counsel appointed.”

Mr. Smith is prosecuting two cases against President Trump, but President Trump isn’t able to bring this motion in his Jan. 6 case in Washington. In 2018, D.C. District Court Judge Beryl Howard ruled in that district that Mr. Mueller was constitutionally appointed, and the decision was upheld on appeal in 2019.

What Does This Mean?

In an op-ed, Mr. Calabresi wrote that allowing Mr. Smith to continue his prosecution could result in a conviction that gets overturned solely because a higher court deems Mr. Smith’s appointment unconstitutional years after the fact. The possibility is heightened by the fact that six Supreme Court Justices hold similar views to him on the Appointments Clause, Mr. Calabresi argued.

“Every action that he has taken since his appointment is now null and void,” Mr. Calabresi wrote. He elaborated on the implications of an attorney general allowed to grant any individual such enforcement power.

Attorney General Merrick Garland delivers remarks at the Justice Department in Washington on Nov. 18, 2022. (Anna Moneymaker/Getty Images)

“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,” he 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.”

When the Supreme Court heard arguments on President Trump’s presidential immunity defense in April, Justice Clarence Thomas brought up the question of the special counsel’s appointment, though it was not argued. Some of the justices have previously written on related matters that suggest they indeed take a similar position as Mr. Calabresi.

In 1998, Brett Kavanaugh authored a paper, “The President and the Independent Counsel,” with arguments for reform as the statute creating the Office of Independent Counsel was set to expire the following year. He took the position that outside counsel was sometimes necessary, but should be appointed as principal officers under the Appointments Clause. At the time, independent counsels were appointed by a three-judge panel.

“A ‘special counsel’ should be appointed in the manner constitutionally mandated for the appointment of other high-level executive branch officials: nomination by the President and confirmation by the Senate,” Mr. Kavanaugh wrote.

Former federal prosecutor John O’Connor told The Epoch Times the issue of Mr. Smith’s authority was “pretty much black and white.”

Mr. O’Connor agrees partially with the amici in that a person in Mr. Smith’s position needs Senate confirmation, and the correct avenue would have been to appoint a U.S. Attorney.

Mr. Smith once served as acting U.S. Attorney for the Middle District of Tennessee, but amici argue this is of no consequence, as he was a private citizen prosecuting war crimes at The Hague when Mr. Garland appointed him as special counsel.

Mr. Smith was also previously part of the Justice Department, as chief of the public integrity section, which Mr. O’Connor argues undermines the independence his appointment was supposed to bring.

“He hasn’t been independent at all,” Mr. O’Connor said. Diverging from the amici, Mr. O’Connor believes the Justice Department regulations do permit the attorney general to appoint special counsels, but they must be truly independent, not to treat such appointments as a “fig leaf” purporting independence.

Mr. O’Connor argued that Mr. Smith’s long tenure at the Justice Department showed he knew his “marching orders.”

Special counsel Jack Smith arrives to deliver remarks on a recently unsealed indictment including four felony counts against former President Donald Trump in Washington on Aug. 1, 2023. (Drew Angerer/Getty Images)

“I think Garland picked Smith because he’s a dogged guy and he can count on Smith not to back off and not to exercise any discretion in favor of Trump,” Mr. O’Connor said.

In his reading of the Mar-a-Lago case, the majority of the charges on retaining classified information warrant dismissal, “but the charges of lying and obstruction are not ridiculous.”

Of course, he says, “nobody wants to hear it.” Supporters of President Trump won’t look at the merits of any of the charges because of the “unfairness” of the case overall, while those who dislike President Trump don’t want to hear that any of the charges are bad, he said.

Had a truly independent prosecutor taken on the case, there might have been a sense of discretion and moderation, Mr. O’Connor said, instilling public confidence in the justice system. The prosecutor might have considered only the few legitimate charges, and “he may not have brought them.”

“He might have thought that, in the exercise of discretion, one shouldn’t do it,” Mr. O’Connor said.

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