June 23, 2024

Judge Aileen Cannon hears arguments on constitutionality of Jack Smith's special counsel appointment

With his legal pursuit of Donald Trump encountering one obstacle after another, special counsel Jack Smith on Friday faced a hearing in the classified documents case which could have far-reaching implications for his ability to continue his cases against the former president.

U.S. District Judge Aileen Cannon began to hear arguments regarding the question of whether Smith's appointment to the role of special counsel -- made by Attorney General Merrick Garland -- was even lawful, and if she ultimately rules in favor of those who claim it was unconstitutional, the cases against Trump would effectively collapse, as Fox News reports.

Arguments commence

During a first day of arguments on the issue, Cannon heard from defense counsel as well as from the government, but also from constitutional experts on both sides of the question.

Toward the end of the session, an attorney from the Landmark Legal Foundation endeavored to make the case that Smith simply lacks the proper authority to engage in the prosecution he has been charged by the Justice Department to undertake.

At the heart of the controversy is a debate about whether Garland possesses the power to appoint someone of Smith's description to serve as special counsel able to prosecute Trump as he has been doing since last summer.

Attorney Matthew Seligman of a group called Defenders of Democracy, focused on the word “appoint” in the relevant statute to argue that Garland had every right to put Smith into his current position and to give him the power to prosecute.

On the other side of the coin were lawyers contending that someone in Smith's position required congressional confirmation, and reports suggest that Cannon was heavily involved in asking questions about the disputed statutory language and its meaning.

High-profile support for Trump's take

This is not the first time the validity of Smith's appointment has been heavily scrutinized, as a group of prominent legal scholars including former Attorney General Ed Meese filed an amicus brief with the U.S. Supreme Court on the issue late last year.

Together with professors Gary Lawson and Steven Calabresi, Meese argued that Garland's decision to tap Smith for the special counsel role ran afoul of the Appointments Clause of the U.S. Constitution and therefore is invalid.

In their submission to the high court, the men contended that given his status as a private citizen, Smith was never eligible for appointment to the role Garland gave him.

Meese asserted that “the Special Counsel, if a valid officer, is a superior (or principal) rather than inferior officer, and thus cannot be appointed by any means other than presidential appointment and senatorial confirmation regardless of what any statutes purport to say.

“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor. Improperly appointed, he has no more authority to represent the United States in...Court than Bryce Harper, Taylor Swift, or Jeff Bezos,” the brief stated, and whether Cannon ultimately agrees, only time will tell.

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