Former Prosecutor Says Jack Smith Appointment Was Illegal

Another legal pundit is taking up the case that the appointment of Special Counsel Jack Smith is illegal.

This time, however, it is someone who had had skin in the game in other cases like this.

Robert W. Ray, a former federal prosecutor and attorney in the Lewinsky-Clinton case, just penned a brief outlining why he believes Smith should be removed.

It’s Illegal

According to Ray, Smith has no legal right to prosecute Donald Trump, and he submitted his brief on the matter in regard to Jack Smith’s appeal of Judge Cannot tossing the classified documents case.

The powers of the Attorney General were litigated during the Nixon presidency, and that has been the standard since regarding the AG's ability to appoint a special counsel.

In Ray’s amicus brief, he calls the Watergate case a notable exception, saying that the powers given to the AG at the time should not be the norm, even though this resulted in a rule being put in place to explain the AG’s powers specifically for a special counsel.

Ray wrote, "From the 1850s through the 1950s, during six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: to assist a U.S. Attorney with prosecutions, or to assist the Attorney General with an investigation.

"And the Watergate Special Prosecutor is a thin reed to stand on. United States v. Nixon expressly and repeatedly recognized that the Watergate Special Prosecutor had 'unique authority and tenure.'

"Further, in 1973, the Acting Attorney General, with the acquiescence of the President, granted the Special Prosecutor unsurpassed insulation against removal, thereby establishing Watergate as a unique case."

I keep going back to the fact that every Special Counsel that has been appointed since Watergate leaned on that rule regarding the AG directly appointing the special counsel.

If this rule is found to be unconstitutional, it would mean the findings of every special counsel post-Watergate is invalid.

This, of course, would include the findings of John Durham in the Russian collusion investigation. Trump Attorney General William Barr appointed Durham under this rule.

To me, this is a lot of smoke and mirrors when the rule has been used and accepted up until this case.

Now, we know that Justice Clarence Thomas believes the appointment was illegal, but no other justices have voiced concerns on the matter.

I am sure this will eventually wind up before the Supreme Court, and when it does, I expect the court to say the Smith appointment was legal and the classified documents case can be revived.

It’s not what people want to hear, but that is the reality of this case.

As always, if I am wrong, I will gladly eat my plate of crow, but I don’t see the legal argument here holding up.