Trump’s Legal Team Argues Smith Illegally Appointed

Donald Trump is taking another shot at having Special Counsel Jack Smith removed from his post.

Trump’s attorneys are using the Appointment’s Clause to suggest that Garland did not have the power to appoint a special counsel.

This is the argument Justice Thomas suggested that led to Judge Cannon dismissing the classified documents case, which is currently under appeal.

It’s Illegal

In dismissing the classified documents case, Judge Cannon wrote, "The bottom line is this: The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers.

"The special counsel's position effectively usurps that important legislative authority, transferring it to a head of department, and in the process threatening the structural liberty inherent in the separation of powers."

The argument to push back against this is 28 CFR § 600.1, which outlines the powers of the attorney general to appoint a special counsel. This has been the standard for roughly five decades.

The same challenge was made when Robert Mueller was appointed, and the challenges failed in that case, so there is no reason to believe the challenges will be successful here.

Keep in mind, when William Barr was Trump’s AG, he appointed a special counsel on this premise, so if Trump is successful, it would nullify the findings from Durham in the Russian collusion investigation.

Not only that, but it would also nullify every special counsel appointment since roughly 1970. Does anyone really think an appeal court or the Supreme Court is going to allow that to happen, especially when this has been thoroughly litigated in the past?

Legally, I understand their argument, but they are dismissing litigation that took place decades ago to address this very subject and the powers of the attorney general.

I won’t dare to say never in this political environment, but I am pretty sure that Trump will not be successful here, and ultimately, the January 6 case will be revived.