Is Jack Smith's Appointment Illegal?

This is a guest post by David W. Fischer, a Maryland and D.C.-based criminal defense attorney and the senior partner at Fischer & Putzi, P.A. Most recently, Fischer defended January 6 defendant Thomas Caldwell, who was acquitted on seditious and other conspiracy charges.

Southern Florida has seen its share of hurricanes, but an earthquake may soon hit the Treasure Coast area as a result of Donald Trump’s motion seeking to dismiss his documents indictment based upon Jack Smith’s alleged illegal appointment as Special Counsel. U.S. District Court Judge Aileen Cannon has set aside two full days (Friday and Monday) to hear arguments addressing whether Smith has the legal authority to prosecute the former president, a clear sign that she perceives Trump’s argument as tenable.

The argument that Attorney General Merrick Garland lacked authority to appoint Jack Smith as Special Counsel to prosecute Trump first surfaced in an amicus brief filed by former Attorney General Edwin Meese in Trump’s immunity appeal (now pending before the U.S. Supreme Court). Meese’s argument emphasizes that Smith has been vested with sweeping powers equivalent to the 93 presidentially appointed (and Senate-confirmed) U.S. Attorneys. According to Meese, Smith has no constitutional authority to act as an unofficial 94th U.S. Attorney because he is not, unlike U.S. Attorneys, a presidentially appointed “officer of the United States” as that term is used in Article 2, Section 2, Clause 2 of the Constitution.

Make no mistake, Meese’s argument in favor of dismissing any indictment that private citizen Jack Smith has brought is strong--and that’s why Judge Cannon is seriously considering sending Smith and his political indictment to the garbage can.

Not being an attorney, have observations and questions: 1. Seems to me that regardless of how Cannon rules this goes to appeal. 2. Seems to me, SCOTUS wants this case in their court. At least some justices do. This “regulation” created by Reno may be something they have hoped to eventually see before SCOTUS. Since it has never been challenged to SCOTUS they have had to sit on the sideline and watch what may be an unconstitutional rule be abused. 3. Seems to me even if she rules for Smith, it goes to appeal and would still delay the DC Jan 6th trial. You cannot try someone if it turns out the prosecutor who brought the case is not legally appointed. If I read this correctly the J6 case would be tossed if SCOTUS rules Smith did not have the power to bring it,

First question I have, could the Chevron case impact Smith's appointment. Reno made a regulation or rule that was not within her authority to create. Since she appears to have created this regulation out of whole cloth without Senate approval.

If Justice Thomas inserts a comment regarding the brief from Messe into the Immunity case, questioning the constitutionality of the Reno rule, could that be used by Cannon in this case?

Which makes me ask, is Cannon a whole lot smarter than people think by scheduling this hearing to coincide with the findings of cases from SCOTUS that could impact her case? She has to know however she rules there will be an appeal, unless she has rulings from SCOTUS that favor her position.

This question is off topic but germane to this case. Presidents do not have immunity. The constitution lays out the process by which a President who has committed a crime while in office is punished. It is called impeachment. Trump was impeached for J6, but not convicted. After the Senate failed to impeach Trump, how is waiting three years, then charging him with basically the same crimes not a form of double jeopardy? Could SCOTUS in a narrow ruling state in this case the proper method to address Presidential immunity was taken against Trump and failed, therefore courts cannot come back once a President is out of office and revisit those same charges?

If SCOTUS rules against Presidential immunity could that comeback to haunt the RAT congress critters, Fed agents and prosecutors? If the holder of the highest office in the land does not have immunity, then no federal office holder does. Am I wrong on that?

Presidents do not have immunity. The constitution lays out the process by which a President who has committed a crime while in office is punished. It is called impeachment. Trump was impeached for J6, but not convicted.

I disagree with your immunity claim. In order for a chief executive to operate while chief executive they require immunity. Because there is process where he can be charged, convicted and removed doesn't change the fact the chief executive has immunity. Otherwise he could be charged and convicted in any state or county or municipal court in the country and tied up from performing his duties. It would be the easiest method for the opposition party to make them impotent.

My feeling, theory, or understanding, or whatever you want to call it is that The President of the United States is that the founders set up the chief executive of the United State just like a King except for the impeachment, conviction, and removal clauses and other limitations in the US Constitution. Just like congressman and senators have immunity when going to the Capitol to vote (Their single most important job as elected by the people and the states) and cannot be arrested or even detained at that time the president of the United States has immunity, limited in some explicit cases, from prosecution. Why, because the duly elected chief executive elected by the people would not be able to lead effectively without a broad immunity save checks and balances.

I am not saying he does not have immunity the Constitution says it. Suggest you read Section 4 of Article 2 of the Constitution. If the President commits high crimes and misdemeanors, the remedy is impeachment therefore he is not immune to prosecution while in office. Trump was impeached over J6, the impeachment trial ended without his removal from office. He was charged, tried and not removed, my question is would trying him again 3 years later constitute double jeopardy. Would it even be legal to wait for him to leave office before charging him. I guess SCOTUS will decide that. But as far as my claim he does not have total immunity the Constitution agrees with me.

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