He wasn’t confirmed by Congress, as required.
Case closed.
Thomas Massie managed to pull it out of Merrick Garland yesterday. Funny how now today a hearing is being set. Almost like it was planned. 🤔
PRAYERS FOR THE JUDGE!
Good. Now if not valid, what next? Case dismissed or sent to DOJ to fix? What if Garland just appoint any DOJ attorney?
1. All officers of the United States, principal and inferior, must hold permanent or continuing positions. Prior to Mr. Smith's "appointment" as Special Counsel, he was not already holding another "officer of the United States" position. Mr. Smith's position as Special Counsel was not a secondment or transfer from some other post in the government. Unlike other United States Attorneys who have been appointed as special counsels, Mr. Smith was not already a senate-confirmed principal "officer of the United States" to which new duties were merely added.
2. More importantly, the Special Counsel's position is not a permanent or continuing position. It is a temporary or ad hoc position. When that single "case" is over, the Special Counsel's position ceases-as such, the Special Counsel's position cannot be characterized as a permanent or continuing one. Under Lucia v. SEC and other Supreme Court binding precedent, such a temporary or ad hoc position cannot be characterized either as a principal officer of the United States or as an inferior officer of the United States. Such a temporary or ad hoc position is, at most, a mere employee of the United States. See Buckley, 424 U.S. at 126 n.162. And as, at most, a mere employee of the United States, such a position cannot be endowed with the powers that the Special Counsel exercises. The Special Counsel only argues that his position is properly characterized as an inferior officer of the United States. However, post-Lucia, the Special Counsel's legal position is a non-starter.
3. Finally, the primary purpose of the Special Counsel regulations, which were modeled on the Independent Counsel statute, was to avoid conflicts of interest when the Executive Branch investigates itself. But here, Attorney General Garland appointed Mr. Smith not to investigate someone connected to the United States Department of Justice, the President, or the Biden Administration—as was the case with Hunter Biden—but to investigate the Biden Administration's leading political opponent. Mr. Smith's appointment was not made to eliminate any internal conflict of interest. Quite the opposite. Mr. Smith was appointed to shield the Attorney General, the Department of Justice, the President, and the Biden administration, from the political accountability associated with investigating and prosecuting a political rival. These dynamics further demonstrate why Smith's appointment is inconsistent with the separation of powers and political accountability. The appointment of a special counsel in the face of internal conflicts makes the government more accountable to the American people. The appointment of a special counsel to investigate and prosecute a political rival makes the government less accountable to the American people.
Garland spoke to this when questioned by Massie, pooh-poohing the whole thing. i got confused by his answers so look forard to hearing Trump’s legal arguments.
People brought this up when he was “appointed,” but nothing ever came of it at the time.
Fingers crossed.
There’s an opportunity here.
If the DOJ made a few hundred thousand homeless people into Special Counsels, we could put a dent in the poverty problem.
I think it’s all over for Smith, except his recurring paycheck will run until year end.
At twice what they are worth.
So what’s happening in Biden’s classified documents case? Asking for a friend.
Didn’t Smith’s appointment by Garland by pass the Senate?
How convenient.
5.56mm
did the Trump team delay raising this issue so any replacement would not be able to get things up and running before the election?
Garland tried to defend his appointment of Jack Smith based on “regulations” used for about three decades.
Problem is regulations are not laws no matter if those regulations have been used as justification in the past. Therefore, Garland had no authority to appointment Jack Smith.