Q&A of the Day – Why Jack Smith Was Determined to Be Unconstitutionally Appointed
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Today’s Entry: Hi Brian, I believe you were the first I heard discuss Jack Smith’s appointment as potentially being unconstitutional some time ago. I know Justice Clarence Thomas helped pave the way for Judge Cannon’s ruling to dismiss the classified documents case but what I haven’t heard is a clear explanation as to why Jack Smith’s appointment was unconstitutional. Could you please address this? Also does this mean that the Jan. 6 case will be dismissed as well?
Bottom Line: You bet. I have touched on the issue on multiple occasions over the past couple of years but most recently on June 25th when this argument was brought before Judge Cannon’s court. As I mentioned in my Top 3 Takeaways that day... Jack Smith’s constitutional question. There’s another question currently being considered by Judge Aileen Cannon, overseeing the classified documents case that would have the potential to effectively eliminate both outstanding federal cases against Trump. Whether Jack Smith was unconstitutionally appointed by Attorney General Merrick Garland and whether he’s been illegally funded in the two cases he’s brought against Trump up to this point. The argument made in court Monday was effectively this. As noted by Boston University’s School of Law: All federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. So, there’s an argument to be made that the creation of any special counsel’s office without explicit authorization by congress, in this instance involving Jack Smith, the need for Senate confirmation, is unconstitutional. It’s a solid constitutional argument, however, with so many special counsels having been appointed by numerous administrations over the past 50 years the established precedent in place probably makes that argument a long shot at best. The next piece of the argument appears to be a bit stronger. Under the law granting the attorney general authority to appoint a special counsel it states: The attorney general may appoint officials to detect and prosecute crimes against the United States. The Trump team is arguing that the use of the term “officials” means Department of Justice employees. Jack Smith was not a Justice Department appointee at the time of his appointment. That led to the third argument that entered into the equation...how Jack Smith is funded. Jack Smith, previously a non-government employee, has theoretically been granted complete independence from the Attorney General and has been handed an unlimited budget for his cases against Trump. All spending by the federal government must be approved by congress. So, in essence you had a non-DOJ employee appointed to a post with an unlimited budget from the DOJ at the exclusive discretion of the Attorney General. There are three potential constitutional questions about the validity of Jack Smith’s role as special prosecutor that Judge Cannon will now weigh. If any one of them were to work it could get Trump off the hook. And that takes us to yesterday’s ruling by Judge Cannon.
In a 93-page ruling issued by Judge Cannon, all charges in the case against former President Donald Trump were dismissed due to a violation of constitutional law by Attorney General Merrick Garland in the appointment of Jack Smith as a special prosecutor. In Cannon’s ruling she stated: In the end, there does appear to be a “tradition” of appointing special-attorney-like figures in moments of political scandal throughout the country’s history (so in other words she didn’t bite on the Trump team’s first argument which I pointed out was a long shot giving the precedent of special counsel appointments). But very few, if any, of these figures actually resemble the position of Special Counsel Smith. Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision. When scrutinized, this spotty historical backdrop does not “amply confirm” the Attorney General’s authority to appoint the Special Counsel here”. Whatever marginal support the history may lend to Special Counsel Smith’s position, the inconsistent patchwork of practices detailed above does not show that Congress ratified—or acquiesced to—the Executive’s use of Section 515 (or its predecessor statutes) to appoint special counsels like Mr. Smith. And it is far from sufficient to overcome the plain language of Section 515, which, does not confer upon the Attorney General officer-appointing power but merely establishes procedures (oath and commission) for already retained special attorneys who act in an assistant capacity. Special Counsel Smith is not an assistant.
She also stated this: For more than 18 months, Special Counsel Smith’s investigation and prosecution has been financed by substantial funds drawn from the Treasury without statutory authorization, and to try to rewrite history at this point seems near impossible. The Court has difficulty seeing how a remedy short of dismissal would cure this substantial separation-of-powers violation, but the answers are not entirely self-evident, and the caselaw is not well developed.
Now, without getting into the nitty grittiness of Section 515 – Authority for legal proceedings... The premise of Cannon’s ruling is this. Special counsels, who effectively operate with nearly unfettered power and resources once appointed, powers greater than those of confirmed U.S. Attorneys, should first have been subjected to the confirmation process any U.S. Attorney must undergo in congress. Until Jack Smith, all appointed special counsels in U.S. history had undergone a congressional confirmation process at some point in their careers. This was what Justice Thomas spoke to in his recent opinion in the Presidential Immunity ruling when he stated: If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding. That’s exactly what Judge Cannon did. The bottom line is that AG Garland took the unprecedented step of enlisting a private citizen with no prior congressional oversight into the role of Special Counsel. Had he followed precedent with a previously confirmed attorney this judgement wouldn’t have been rendered.
For people who may wonder why this really matters, consider this. In an era in which we now have the weaponization of the legal system against political opponents, if the appointment of Smith were allowed to stand it would allow future administrations to select literally any attorney off of the street and appoint them to a post that’s effectively the second highest law enforcement position in the country. In layman's terms that’s what this is really about. As for whether this will disqualify the January 6th case, the answer is no. Here’s what happens next...
The federal government will have the option to appeal Judge Cannon’s ruling (they likely will). That decision could then be appealed to the U.S. Supreme Court which may well be where this matter is ultimately decided. Meanwhile, in D.C., in the January 6th related case, Judge Chutkan has not gone along with any of the Trump team’s arguments and will proceed with the case, to the extent she is able to do so, setting up a split in the legal system which again points to an appellate court or the Supreme Court ultimately deciding this matter.