Trump Attorneys File to Have Smith Removed for Unlawful Appointment

Donald Trump has one last bullet left to fire against Smith, and he just let it rip.

Trump’s attorneys have filed a motion to have Smith removed as special counsel claiming that his appointment was illegal.

Not to burst anyone’s bubble here, but it is not going to work.

Law is Clear

Going back to the Nixon area, the idea of the Attorney General being able to appoint a special counsel has been heavily litigated.

This resulted in 28 CFR § 600.1, which outlines the attorney general’s powers in terms of appointing a special counsel.

This rule has been followed for about five decades, never being challenged.

Trump’s attorneys are leaning into the Constitution’s Appointments and Appropriations Clauses, which states, "Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States be appointed by the President subject to the advice and consent of the Senate, although Congress may vest the appointment of inferior officers in the President alone, in the Courts of Law, or in the Heads of Departments."

But again, Title 28 Chapter 6 Part 600 outlines “Grounds for appointing a Special Counsel,” so I don’t see that rule suddenly gets voided.

To be clear, if Smith is removed and his appointment deemed unconstitutional, then every other special counsel case will have been illegal as well, and I don’t believe there is any way the Supreme Court will allow that to happen.

Keep in mind that these same powers enabled then-Attorney General William Barr to appoint John Durham as special counsel.

Now, unless I am missing something, this argument is null and void, and Trump will lose this motion.

Smith has until October 31 to respond, at which point Judge Chutkan will make her ruling.

She will most definitely decline the motion, at which point I would expect Trump to appeal the case, all the way to the Supreme Court if necessary.

Again, maybe I am missing something here, but the attorneys I have talked to on this matter are all 99% sure Trump has no legal grounds to stand on her and believe this is all nothing more than a delay tactic by Trump’s legal team.