Special Counsel Jack Smith hasn't had the best of luck recently in his pursuit of prosecuting former President Donald Trump.

From trial delays to denied gag orders, Smith is struggling to maintain the momentum he once had, at least in the public eye.

According to Fox News, things could get a lot worse for Smith as the judge in the classified documents case is holding an expanded hearing to determine if Smith's appointment to his powerful position is even lawful.

The idea that Smith's appointment could be unlawful has grown legs in recent weeks.

What's going on?

The news that Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida is holding a hearing on the potential unlawful appointment of Special Counsel Smith comes in the wake of her "indefinite" delay of the classified documents trial.

🚨 🚨 🚨 Good morning, today is Friday June 7th, and the judge in corrupt Jack Smith's bogus case against Trump is forcing the DOJ & Garland to prove Smith's appointment as Special Prosecutor was even legal. We all KNOW it wasn't. Time for the truth to come out, Merrick.… pic.twitter.com/3XkGfrcIvA

— Sandra Loftis (@Sandra_G_Loftis) June 7, 2024

Fox News noted:

Upon postponing the trial, Cannon scheduled deadlines for reports on June 10 and 17 – and a nonevidentiary hearing on a motion to dismiss on June 21 – "based on unlawful appointment and funding of special counsel."

The idea that Smith wasn't properly appointed to the position of special counsel came via former Attorney General Ed Meese.

He wrote in an amicus brief that Smith's appointment, via AG Merrick Garland, was not constitutional based on Smith's status as a private citizen at the time, claiming its a violation of the Appointments Clause of the Constitution.

Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor," the brief states.

"Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos," the amicus brief added.

Garland responds

AG Garland fired back in defense of his appointment of Smith.

"The matter that you're talking about, about whether somebody can have an employee of the Justice Department serve as special counsel has been adjudicated," Garland said at the time.

Only time will tell if Judge Cannon buys it or not.