Arguments in U.S. District Court: Jack Smith’s Appointment as Special Counsel Is Unconstitutional

Prosecutor Jack Smith listens as Hashim Thaci, not pictured, makes his first courtroom app
Jerry Lampen/Pool Photo via AP

U.S. District Court Judge Aileen Cannon began hearing arguments Friday that U.S. Attorney General Merrick Garland’s appointment of Jack Smith as special counsel is unconstitutional.

Cannon’s ruling potentially could invalidate Smith’s appointment, striking a critical blow to the Joe Biden Department of Justice’s case in Donald Trump’s classified documents case before Cannon, as well as DOJ’s case against Trump in Washington for alleged interference in the 2020 election.

Friday’s arguments in Cannon’s court featured three outside attorneys, with two arguing the Smith appointment is unconstitutional and a third insisting the court should uphold Garland’s appointment of Smith. Cannon’s rare decision to allow third party oral arguments is likely due to the untested legal questions before the court, including Smith’s appointment.

Judge Aileen Cannon (United States District Court)

Cannon probed attorneys for each argument Friday, giving little indication which way she would rule.

“Today was an important day for the rule of law because basic principles were discussed in a very deliberate fashion,” said former U.S. Attorney General Michael Mukasey, who, along with Attorney General Ed Meese, filed a brief in this case with attorneys from the law firm Schaerr Jaffe, arguing that Garland’s naming Smith as special counsel violates the Constitution’s Appointments Clause. “This case involves basic issues going to the power and authority of government, which should be of concern to every American.”


Michael Mukasey on FBN”s Sunday Morning Futures, 8/14/2022

The Meese brief, joined by Citizens United and others, is at the heart of the argument for the unconstitutionality of Smith’s appointment. The brief claims Garland improperly appointed Smith to an office that does not exist with authority Garland does not possess.

As Breitbart News previously reported:

The group originally filed an amicus (or “friend of the court”) brief in December arguing that Smith lacks authority to represent the United States… The amicus argued that Smith’s appointment is unconstitutional because the office he holds has not been created by Congress, and that even if it had been, the Appointments Clause of the Constitution further requires that Smith cannot hold the range of power he wields without Senate confirmation.

Cannon asked each side several questions regarding DOJ’s historical use of special counsels and prosecutors.

While Congress previously established an office similar to a special counsel called an “independent counsel,” that statute expired in 1999. And although Congress – which created the Department of Justice – authorizes an “officer” authority and powers similar to those Garland granted Smith, those officers require presidential appointment and senatorial confirmation. Given those restrictions, special counsels are generally chosen from federal prosecutors, which check those legal and constitutional boxes.

Yet Garland gave Smith the powers of a president-nominated and Senate-appointed officer despite Smith being no more than an employee of Garland. Meese and his compatriots argue Garland does not possess the authority to create such an office or give such power, and that establishment of confirmation process for anyone wielding such power is evidence that Smith – or anyone else – cannot simply be granted it unilaterally by an attorney general.

Attorney General Merrick Garland listens to a question while testifying during a House Judiciary Committee hearing on the Department of Justice, Tuesday, June 4, 2024, on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin)

Presenting for the attorneys general, Citizens United, and constitutional scholars, Gene Schaerr took the position that the district court should follow the canon of constitutional doubt. Under that principle, when a federal law can be interpreted two ways, one of which would raise serious questions about whether it was constitutional, but the other a narrower interpretation that is clearly allowed by the Constitution, a federal court must choose the latter.

Applying that principle to the provisions of federal law that Smith cited as authorizing his appointment – none of which mention a special counsel or appointing any sort of federal officers – Schaerr argued that the court should conclude none of those provisions empower an attorney general to appoint a chief prosecutor with all the powers that Smith possesses.

Trump and his allies have alleged Garland’s appointment of Smith is part of a broader attempt to weaponize the Biden administration and courts across the country against Trump. Cannon pointedly asked the prosecution “Did the attorney general have any oversight role in seeking the indictment?”

James Pearce, attorney for the special counsel, declined to answer, citing policy. He resisted answering despite further probing by Cannon.

“Joe Biden can’t beat Donald Trump at the ballot box, and that’s why Joe Biden’s lawfare is happening,” said David Bossie, the president of Citizens United, who along with Meese and Mukasey is challenging Smith’s appointment as unconstitutional. “Our lawyers did a great job of explaining why Jack Smith’s appointment is unconstitutional, because Congress has not passed a statute creating his office.”

David Bossie speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.

David Bossie speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, Maryland.

Smith’s appointment has drawn increasing fire from legal scholars and Trump’s allies, including those on Capitol Hill. Republican lawmakers grilled Garland during a June 5 House Judiciary Committee hearing on the appointment’s constitutionality and other concerns.

“You’ve created an office in the U.S. government that doesn’t exist and without authorization from Congress,” Thomas Massie told Garland after reading him the Appointments Clause. When asked straightforwardly if the Special Counsel’s office was legal, Garland demurred, yet he did acknowledge that Smith had not been nominated by Biden or confirmed by the Senate.

Multiple lawmakers used Garland’s appearance before the committee to probe his reasoning for appointing Smith as well. Garland offered little more than generic resumé qualifications of Smith, insisting he would be independent and non-partisan (despite that claim, Smith’s wife donated to Biden’s 2020 campaign and produced a film about former first lady Michelle Obama).

The date of Garland’s announcement of Smith’s appointment, November 18, 2022, might shed light on the true reasoning behind Garland’s choice.

Breitbart News recently exposed the significance of that date, on which Garland appointed Smith to revitalize its cases against Trump in Washington and Florida, Fulton County assistant prosecutor Nathan Wade spent an astonishing eight hours in the White House counsel’s office on official business related to his role prosecuting Trump, and Biden’s third-ranking official at DOJ resigned to take a much lower profile assistant prosecutor role in Manhattan District Attorney Alvin Bragg’s office.

Smith’s reputation for relentlessness, which has been characterized as an any-means-necessary approach to targeting his opponents, made him perhaps the ideal choice to revitalize the Biden DOJ’s stagnant investigations into Trump – despite Smith not serving at the time as a federal prosecutor. As Breitbart reported:

Smith has a history of botching prosecutions of leading political figures and a reputation for a willingness to use broadly worded federal statutes and legally radical interpretations of the law to take out his prosecutorial targets. His public corruption victory against former Virginia Gov. Bob McDonnell was overturned by the Supreme Court in a unanimous 8-0 rebuke. And his prosecution of former Democrat vice presidential nominee John Edwards resulted in an acquittal on one count and a hung jury on others. The DOJ declined to try Edwards again.

Wade’s White House visit on November 18, 2022, in which the low-ranking local assistant prosecutor received invaluable hours worth of time from Biden’s top attorneys, was followed weeks later by the Fulton County special purpose grand jury issuing a sealed report recommending indictments against Trump and his codefendants. Trump was indicted months later in April 2023.

Similarly, the resignation on November 18, 2022 of Acting Associate Attorney General Michael Colangelo, one of the highest-ranking law enforcement officers in the country, to join Bragg’s office jumpstarted Bragg’s stalled investigations into Trump. As Breitbart News reported:

The former DOJ lawyer played a crucial role in rejuvenating Bragg’s stagnated investigations into Trump after arriving in Manhattan on December 5, 2022. The renewed focus on Trump that Colangelo sparked in Bragg’s office led to the office filing charges in April 2023.

Although Bragg had “campaigned as the best candidate to go after the former president” according to the New York Times, soon after taking office, he quietly began to dial back investigations into the former president – reportedly after struggling to find a prosecutable crime.

Mark Pomerantz, a special assistant on the Trump case, very publicly resigned from Bragg’s office in February 2022 out of frustration with Bragg’s reluctance to continue pursuing a case against Trump.

Colangelo’s arrival historically changed the trajectory of the investigation – which Trump has called a “zombie case” – despite Bragg’s apparent misgivings over making charges stick.

Colangelo’s role in orchestrating the case was so crucial, he presented opening arguments during the trial.

With Biden’s former third ranking DOJ official assisting, Bragg secured Trump’s conviction on 34 counts in May 2024.

The three monumental steps taken that day catalyzed a series of lawfare fronts which cost Trump millions of dollars in legal fees, countless hours away from the campaign trail, and the stigma of multiple prosecutions and convictions – although Trump is vigorously appealing the Manhattan verdict.

Former President Donald Trump reacts to reporters as he returns following a break at Manhattan criminal court during closing arguments in his criminal hush money trial in New York, Tuesday, May 28, 2024. (Andrew Kelly/Pool Photo via AP)

Former President Donald Trump reacts to reporters as he returns following a break at Manhattan criminal court during closing arguments in his criminal hush money trial in New York, Tuesday, May 28, 2024. (Andrew Kelly/Pool Photo via AP)

Critically, that date occurred only nine days after Biden announced on November 9, 2022 his intent to use “legitimate efforts of our Constitution” – not the ballot box – to block Trump’s reelection bid.

“We just have to demonstrate that he will not take power, if he does run, making sure he, under legitimate efforts of our Constitution, does not become the next president again [sic],” Biden said of Trump in a White House press conference.

The day after Breitbart’s initial reporting on the significance of November 18, 2022, the Washington Post published an op-ed by Garland dismissing any criticisms of DOJ as politically motivated conspiracy theories. Despite evidence, Biden and White House officials continue to deny any involvement in the multiple lawsuits against Trump.

The Florida case is unlikely to head to trial before the November election after Cannon suspended a key deadline following Trump’s attorney’s argument that Smith had failed to preserve critical evidence.

Smith’s Washington election interference case has also hit multiple roadblocks. In oral arguments in April, a majority of Supreme Court justices sympathized with Trump’s attorneys’ arguments that a president does enjoy some level of immunity that endures past the term of office.

That case is also unlikely to be decided before the November election.

Cannon’s upcoming ruling on the constitutionality of Smith’s appointment would have significant ramifications not only in courtrooms in Florida and Washington but also in the court of public opinion leading into November elections.

Joining Meese, Mukasey, and Citizens United in filing the amicus brief are two prominent constitutional law experts.

The Florida hearing will continue into next week, with Cannon set to hear additional arguments, including Smith’s request for an order to bar Trump from making claims about the FBI raid on his Mar-a-Lago home that led to Smith’s criminal charges against Trump.

The case is United States v. Trump, 9:23-cr-80101, in the U.S. District Court for the Southern District of Florida.

Bradley Jaye is a Capitol Hill Correspondent for Breitbart News. Follow him on X/Twitter at @BradleyAJaye.


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