Today, federal Judge Aileen Cannon declared unconstitutional Special Counsel Jack Smith’s prosecution of President Trump based on the Appointments Clause.
Smith is the prosecutor that Attorney General Merrick Garland appointed to investigate President Trump’s role in January 6 and his handling of classified documents. We litigated the exact same constitutional question in 2018 when we launched a challenge to Robert Mueller, the Special Counsel who investigated “collusion” with Russia. NLPC Counsel Paul Kamenar represented Andrew Miller, a witness in the case and an aide to Roger Stone who was being prosecuted at the time. Miller refused to answer questions from Mueller in front of a grand jury. He was held in Contempt of Court, thereby allowing an appeal where the Constitutional question could be considered.
Kamenar argued that case before the U.S. Court of Appeals for D.C., the second highest court in the land. He told the Court, “The special counsel does exercise extraordinary prosecutorial and governmental powers. He can bring indictments in multiple jurisdictions. He’s like a U.S. attorney at-large. He can indict without consulting the acting attorney general.” Yet, unlike all other U.S. Attorneys who were appointed by the President and confirmed by the Senate, Mueller, who was a private citizen at the time, was simply tapped by the Justice Department to prosecute the case.
As NLPC President Peter Flaherty was quoted in the New York Times, “The founders feared exactly what we see in Mueller: a runaway federal official. We hope to see Mueller’s operation disbanded, once and for all.”
The Court ruled against Miller, and a rehearing petition failed. Further appeal to the Supreme Court was not able to be made. But Kamenar asserted at the time that the issue was unresolved and predicted that it would surface again. He was right. Here we are six years later.
We did not succeed in shutting down Mueller, but President Trump’s attorneys have succeeded in shutting down Smith, who had been granted similar wide-ranging powers. They had the help of a group of legal experts organized by former Attorney General Ed Meese who filed an amicus brief on the constitutional question. Kamenar helped prepare Meese’s attorney for the oral argument before Judge Cannon.
The Appointments Clause specifies that there are two kinds of federal officials: “principal officers” who require a presidential appointment, and Senate confirmation and “inferior officers” who don’t. When he was appointed, Smith was a private citizen, never confirmed by the Senate.
And he’s hardly a “inferior” official. Indeed, he was trying to take out a presidential candidate! Previous private attorneys who served as prosecutors had been appointed under the independent counsel statute, which had expired in 1999. The bottom line is that regardless if Smith was a principal or inferior officer, there simply was no law enacted by Congress establishing the office of Special Counsel.
Other Special Counsels like David Weiss, who is prosecuting Hunter Biden, pass constitutional muster because they were already sitting U.S. Attorneys. Of course, there are other problems with Weiss, namely that he is going after Hunter only as a rear-guard action to protect Joe Biden.
Judge Cannon should be given credit for standing strong when the media started criticizing her. Predictably, the New York Times set the pace with a series of disparaging stories.
Kamenar commented on Cannon’s decision:
Judge Aileen Cannon’s dismissal of the indictment against President Donald Trump because Jack Smith was not constitutionally appointed is welcome news to those who believe that the awesome powers of a Special Counsel should be exercised only by someone who is appointed according to a law enacted by Congress, not some hastily drafted regulations by then-Attorney General Janet Reno.
We’re confident that Judge Cannon’s opinion will be upheld by the Eleventh Circuit which is not bound by the D.C. Circuit opinion, and ultimately by the Supreme Court.
Click here for a Daily Signal article.
Click here for a 2023 Townhall op-ed by Kamenar.
Click here for Judge Cannon’s decision.
Click here for Meese’s amicus brief.
Click here for Kamenar’s brief in the 2018 Mueller case.
Photo credit: AP
