Can Special Counsel Jack Smith be Stopped on Constitutional Grounds?

In a op-ed, NLPC Counsel Paul Kamenar writes:

Special Counsel Jack Smith’s decision to file criminal charges against Donald Trump in the Southern District of Florida instead of the District of Columbia may prove to be advantageous to Trump’s defense in at least three respects.


Unlike a jury in the District of Columbia, where only 5% of its citizens voted for Trump in 2020, 43% of citizens in Palm Beach County, where the court sits, voted for him. It only takes one juror to acquit to have a hung jury.


Second, the judge assigned to the case is Judge Aileen Cannon, a Trump appointee, who ruled favorably on his request for a Special Master to oversee the handling of the documents seized by the FBI during the raid on Mar-a-Lago, although she was reversed by the Eleventh Circuit.


Finally, and more significantly, neither Judge Cannon nor the 11th Circuit will be bound by a questionable ruling of the D.C. Circuit in 2019 that rejected my challenge to the legal authority of Special Counsel Robert Mueller to issue grand jury subpoenas and file criminal indictments because Congress did not authorize such an office and, unlike all other U.S. Attorneys wielding prosecutorial powers, he was not appointed by the President and confirmed by the Senate, as required by the Appointments Clause of Article II of the Constitution.


Trump’s attorneys should file a motion to dismiss the indictment on those grounds. Such a motion should have broad support regardless of what one thinks of the merits of the charges against Trump, with the Supreme Court ultimately deciding the issue of the legitimacy of Special Counsel appointments by the Attorney General.

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NLPC supported the legal challenge to the constitutionality of Mueller’s investigation, spearheaded by Kamenar. The nearly yearlong litigation went through through the U.S. District Court for the District of Columbia, up to the U.S. Court of Appeals for the District of Columbia, and back down to the District Court.

The challenge was initiated on June 28, 2018 when Kamenar filed a Motion to Quash a subpoena for Andrew Miller, who had been subpoenaed as witness in the probe, to appear before a Grand Jury. Kamenar argued that Mueller had been appointed in violation of the Appointments Clause of the Constitution and therefore had no authority to call Miller as a witness.

On February 26, 2019, the Court ruled against Miller, issuing an unexpectedly brief decision of only 16 pages after taking an unexpectedly long three months after the oral argument. It is unknown why the Court took so long, but the bigger disappointment was the decision itself. It conveniently ducked the statutory issue, namely that there was no clear authority in the law to appoint a private attorney like Mueller as a prosecutor.

At the time, Kamenar asserted that since the question was unresolved, it was likely to resurface. It didn’t take long.




Tags: Donald Trump, Jack Smith, Robert Mueller, Special Counsel