Special counsel Jack Smith’s case against former president Donald Trump could be over before it even gets off the ground, depending on the results of a hearing before U.S. District Court Judge Aileen Cannon.
On June 21st, Cannon, who placed Trump’s classified documents trial under indefinite postponement in May, will hear arguments as to the constitutionality of Smith’s allegedly “unlawful” appointment, and determine whether the entire case should be dismissed based on that.
Smith, a private citizen, was appointed in November 2022 by Attorney General Merrick Garland, but was not at that point nominated by the president nor confirmed by the Senate. Trump’s attorneys argue that due to this, he lacks the authority to bring charges against the former president, per the Daily Caller.
“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,” Trump’s legal team argued in a motion filed February 22. “As such, Jack Smith lacks the authority to prosecute this action.”
Smith argued in March that there is historical precedent, noting that the Supreme Court held in its 1974 case United States v. Nixon, “that the Attorney General has the statutory authority to appoint a Special Prosecutor.”
“The D.C Circuit recognized precisely that conclusion when holding that the Acting Attorney General had the statutory authority to appoint Special Counsel Mueller,” he wrote.
However, Trump’s attorneys had already argued in their initial filing that the Supreme Court’s Nixon ruling characterized “special prosecutors” as “subordinate officers,” who Smith’s current authority exceeds.
“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,’” they wrote. “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.”
Former Reagan administration Attorney General Edwin Meese III supported the Trump team’s argument against Smith’s appointment and joined amicus briefs filed in Trump’s election interference case at the D.C. Circuit and Supreme Court. This coming hearing will be the first time potential legal issues with Smith’s appointment are given a dedicated hearing.
Smith’s appointment also has implications beyond this case. Law professor Steven Calabresi wrote in a December Reason column that Smith’s appointment, and subsequent jurisdiction across the nation, makes him “more powerful” than any other Senate-confirmed U.S. Attorney.
“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,” Calabresi 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.”
Trump faces 41 felony counts in his Florida case. He was indicted last June on charges connected to his alleged mishandling of classified documents at his Mar-A-Lago estate.
The post Jack Smith’s Potentially “Unlawful” Appointment Could End His Prosecution Of Trump Before It Gets Off The Ground appeared first on Resist the Mainstream.
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Author: John Symank
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