Paul Kamenar, counsel to the National Legal and Policy Center, tells One America News Network that it is uphill for Special Counsel Jack Smith’s appeal of Judge Aileen Cannon’s ruling that his appointment was unconstitutional.
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. Kamenar, who argued the case, predicted at the time that the issue would rise again.
When Smith was appointed Special Counsel by Garland, Kamenar 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.