Special Counsel Jack Smith’s two witch hunts against Donald Trump are currently on hold.
One could be on the verge of complete implosion.
And Donald Trump hit Jack Smith with a nasty surprise that could end his trial.
Hearing could determine fate of Jack Smith’s case
Judge Aileen Cannon scheduled a hearing to determine whether Attorney General Merrick Garland unconstitutionally appointed private citizen Jack Smith as special counsel.
If Judge Cannon rules in the affirmative, Smith’s charges against Trump in the Mar-a-Lago documents case may get tossed.
The Landmark Legal Foundation filed an amicus brief, which argued that “Special Counsel Smith does not hold an ‘office’ and he is not an ‘Officer of the United States.'”
This brief argues that because Smith is an employee of the Justice Department, a separate funding scheme separate from the money set aside for the Department of Justice is unconstitutional.
Trump’s lawyers also picked up on this thread.
In their motion to Judge Cannon, Trump’s lawyers argued that Garland “unleashed Smith as a Biden campaign surrogate to try to harm President Trump’s campaign by any means necessary.”
Trump’s lawyers argued funding Smith’s witch hunt through a slush fund as opposed to the Justice Department’s budget didn’t pass Constitutional muster.
“It is unlikely, at best, that there is any source of funding at [the] DOJ [Department of Justice] that could have funded the sprawling, politically-motivated activities that Smith has undertaken as if President Biden handed him a blank check,” Trump’s lawyers wrote.
The Appointments clause controversy
Judge Cannon allowed this argument to move forward after former Reagan administration Attorney General Ed Meese argued that Smith’s status as special counsel violated the appointments clause of the Constitution.
Trump’s lawyers made a similar argument.
The appointments clause says of the President “and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law but the 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.”
Joe Biden didn’t send Jack Smith’s nomination to the Senate for a confirmation vote.
Jack Smith isn’t a current United States Attorney.
And there is no statute creating the office of special counsel.
Under every reading of the appointments clause, Smith doesn’t have a valid claim to hold a legitimate office of the United States.
Smith is simply a private citizen.
Meese argued that “none of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”
Cannon is clearly intrigued by this argument, as conservatives have long argued independent and special counsels are unconstitutional as they essentially operate as a fourth branch of government with unlimited power and no accountability under the separation of powers doctrine.
And this hearing could provide a platform for Judge Cannon to end this tyrannical practice of naming special counsels, where the government appoints a prosecutor with unlimited staff and budget to target individuals.
