Friday hearing will focus lawfulness of Special Counsel Jack Smith's appointment

 June 17, 2024

Special Counsel Jack Smith has spent the better part of a year attempting to prosecute former President Donald Trump over his handling of classified documents.

However, Smith is on the defensive this week as a Friday hearing could result in his removal from the case. 

Trump's attorneys say Smith was improperly appointed

According to the Daily Caller, Trump's lawyers argued in a February motion that Smith's appointment by Attorney General Merrick Garland was unconstitutional.

"The Appointments Clause does not permit the Attorney General to appoint, without Senate confirmation, a private citizen and like-minded political ally to wield the prosecutorial power of the United States," it declared, adding, "As such, Jack Smith lacks the authority to prosecute this action."

Smith countered with a brief of his own which recalled how the Supreme Court ruled that "that the Attorney General has the statutory authority to appoint a Special Prosecutor" in United States v. Nixon.

"The D.C Circuit recognized precisely that conclusion when holding that the Acting Attorney General had the statutory authority to appoint Special Counsel Mueller," Smith maintained.

Defense lawyers also cited United States v. Nixon

However, the former president's attorneys insisted that far from bolstering Smith's position, the Supreme Court's holding in United States v. Nixon undermines it.

Specifically, they pointed to the justice's opinion that "special prosecutors" are "subordinate officers," a role which Smith has claimed not to hold.

"Attorney General Garland declared that Smith's appointment was intended to promote independence, and the Special Counsel’s Office has insisted that 'coordination with the Biden Administration' is 'non-existent,'" their motion read.

"If Smith is a subordinate officer as Nixon suggests, then these public assertions 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," it went on to declare.

Former attorney general says Smith's appointment was unlawful

The Daily Caller noted that Trump's defense team isn't alone in disputing the legality of Smith's appointment, as former Attorney General Edwin Meese III has done so as well.

Fox News reported that Meese submitted an amicus brief to the Supreme Court last year in which he argued Smith's selection violated the Appointments Clause as he was a private citizen when Garland made him special counsel.

"Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos," Meese said of Smith in the brief, which was also co-authored by  law professors Steven G. Calabresi and Gary S. Lawson.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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