Tomorrow in Florida, the judge overseeing President Trump’s trial in the classified documents case will hold a hearing on arguments that Special Counsel Jack Smith’s appointment by Attorney General Merrick Garland violated the Constitution.
That case will be made by Trump’s attorneys and other legal experts who have filed friend-of-the-court briefs.
NLPC litigated this very question in 2018 when we challenged the appointment and authority of Special Counsel Robert Mueller. Although we lost, the Constitutional question was left very much unsettled. NLPC Counsel Paul Kamenar, who argued the case, predicted at the time that the issue would rise again.
When Smith was appointed Special Counsel by Garland, Paul quickly reacted. Click here to see his opinion piece on Townhall titled “Why the Jack Smith Appointment is Unlawful.”
The argument is that the Appointments Clause of the Constitution authorizes only Congress to create federal offices. This is not a problem when a sitting U.S. Attorney like John Durham or David Weiss is appointed Special Counsel. They already hold office, have been appointed by the president, and hve been confirmed by the Senate. In contrast, the highly partisan Jack Smith was only a private attorney when he was appointed.
Click here for a friend-of-the-court brief on this question filed by legal experts, including two former Attorneys General,
