Jack Smith is about to lose his case against Trump because of this judge’s decision

Cat1 / Politics

Photo by United States Department of Justice, via Wikimedia, public domain

Special Counsel Jack Smith is skating on thin ice.

It could be game over for him.

And Jack Smith is about to lose his case against Trump because of this judge’s decision.

Judge Cannon schedules key hearing on dismissing Smith’s charges against Donald Trump

Special Counsel Jack Smith continues to find out that it’s hard to railroad a defendant on sham charges when you aren’t playing a home game in front of a Democrat judge.

Judge Aileen Cannon keeps holding Smith’s feet to the fire with her rulings that make it clear she is no fan of a Special Counsel who operates like the law and the constitution don’t apply to him.

Former President Donald Trump’s legal team filed a motion to dismiss Smith’s charges in the Mar-a-Lago documents case on the basis that his appointment as special counsel violated the appointments clause.

What set the Left off was that Judge Cannon reserved time in oral arguments for parties who submitted amicus briefs.

Law professors Josh Blackman, Gene Schaerr, and Matthew Seligman will get 30 minutes at oral arguments to make their case.

Blackman and Schaerr oppose Smith’s appointment and Seligman claims it passes constitutional muster.

The appointments clause

The appointments clause to the Constitution gives the ability of agency heads – such as the Attorney General to appoint inferior officers if the position is created by Congress. 

“…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,” the appointments clause reads.

Blackman argued that Smith’s appointment as a special counsel is defined as a temporary position.

“Procedurally, Special Counsel Smith’s position was (purportedly) created by the Attorney General to resolve a particular controversy. See 28 C.F.R. § 600.1. And this Special Counsel position will cease to exist when that investigation is completed. 28 C.F.R. § 600.8(c). This ephemeral position’s duties were and are only ‘temporary’ rather than “continuing and permanent,” Blackman wrote.

Blackman argued that Smith’s position as independent counsel doesn’t qualify as an officer.

Furthermore, under longstanding and controlling precedent, a position that is not ‘continuous’ is not an ‘office’ at all. Id. At most, Smith’s temporary position is properly characterized as a mere ‘employee.’ Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976). Special Counsel Smith does not hold an “office,” and he is not an “Officer of the United States.” To paraphrase Justice Scalia’s Morrison dissent, this employee came as an employee.

And since Smith isn’t an officer and his position isn’t created by law – there is no Special Counsel statute on the books – his appointment violates the Constitution.

“Substantively, the regulations vest the Special Counsel with ‘the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.’ 28 C.F.R. § 600.6. A United States attorney is considered an inferior ‘Officer of the United States.’ United States v. Hilario, 218 F.3d 19, 25 (1st Cir. 2000). However, a mere ‘employee’ cannot exercise the broad prosecutorial powers of a United States attorney,” Blackman added.

Conservatives have long contended that Special Counsels violate the Constitution.

It’s one reason they were happy to let the independent counsel statute expire after Independent Counsel Ken Starr’s impeachment proceeding against former President Bill Clinton.

And by letting that law expire, the authority to appoint private citizens like Jack Smith as Special Counsel also went out the window.

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