I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.
No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.
Justice Thomas then proceeds to fully describe the dubious nature of the appointment. See pages 52-60 for the full Thomas concurrence.
Judge Cannon, no doubt, will refer to this issue and the Thomas opinion. She could disqualify Smith. It would bve the decisive blow.
“federal offices”
The commanders of Blackhawk in Iraq were “hired guns”. Nobody considered them to be federal officers.
One could say Jack Smith is a “hired gun”.
At the worst, the DoJ would have to refile paperwork and Jack Smith would have to repay Uncle Sam.
Chief Justice ‘it’s a tax’ Roberts isn’t going to want to waste Supreme Court time over Jack Smith’s lucrative payment arrangements.
Judges don’t like their time wasted on trivialities.
The big problems are:
1. Republican presidential candidate Trump is being tied up over legal BS, and
2. the politically motivated searches done by New York to dig up charges against Trump violated his Amendment IV right to be free from unreasonable searches and seizures.