Judge to hear arguments over whether Jack Smith should be disqualified as special counsel

By 
 June 20, 2024

Since last year's raid on Donald Trump's Mar-a-Lago resort, Special Counsel Jack Smith has attempted to prosecute the former president over his handling of classified documents.

Yet this week saw the focus shift to Smith as the special counsel faces demands for his disqualification. 

Opponents says Smith's position runs afoul of Appointments Clause

As New York Sun columnist A.R. Hoffman noted in a recent op-ed piece, Judge Aileen Cannon will hear arguments on Friday and Monday over whether Smith's appointment was lawful.

Trump's defense team first suggested that it was not in a brief filed this past February, which maintained that his hiring 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," they wrote, adding, "As such, Jack Smith lacks the authority to prosecute this action."

Yet in addition to contending with the former president's attorneys, Hoffman pointed out that Smith will also be confronted by "amicus curiae, non-parties to the case who have been granted the rare opportunity to argue orally."

Law professors question Smith's status as an officer

One of them is law professor Joshua Blackman, who will be voicing objections put forward by fellow law professor Seth Barrett Tillman as well as the Landmark Legal Foundation.

They believe that Smith is merely an "employee" rather than an "officer" as described by the Constitution's Appointments Clause.

It holds that a president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors … and all other Officers of the United States."

The test goes on to stipulate that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Blackmun and Tillman pointed to an 1868 Supreme Court ruling which held that an officer's work is "continuing and permanent, not occasional or temporary" before noting that Smith's authority will end when he is finished prosecuting Trump.

Two former attorneys general say Smith must be confirmed by the Senate

Meanwhile, Smith is also being attacked by Attorneys General Michael Mukasey and Edwin Meese along with law professors Gary Lawson and Steven Calabresi.

The four are being represented by lawyer Gene Schaerr, who will argue that Attorney General Garland "cannot elevate a private citizen to be special counsel."

They argue that Smith functions as principal officer who is "more powerful than the 94 United States attorneys," but unlike them he was never confirmed by the Senate.

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