A recent appeals court hearing marked the first attempt by special counsel Jack Smith to defend his legitimacy after a judge’s ruling threw his classified documents case against former President Donald Trump into jeopardy. The controversy centers on the question of whether Smith’s appointment as special counsel was lawful.
The issue gained national attention when Judge Cannon, a Trump appointee, unexpectedly dismissed the Espionage Act charges against Trump, citing concerns about the limits of special counsel power. Her decision sparked outrage among liberal legal observers, who argued that she was defying established precedent.
Two high-profile defendants, Hunter Biden and Alexander Smirnov, attempted to capitalize on Cannon’s ruling by seeking to have their own charges dropped, but their efforts were unsuccessful.
The dispute between Smith and Trump’s team revolves around the interpretation of language in the Constitution and federal statutes. According to Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, the crux of the argument lies in the distinction between special counsels who are current U.S. attorneys and those who are not.
The case highlights the differences between Smith and another special counsel, David Weiss, who was appointed by Attorney General Merrick Garland in August. Weiss, a current U.S. attorney, was confirmed by the Senate, whereas Smith was a private citizen at the time of his appointment.
Traditionally, special counsels have operated with a high degree of independence and broad jurisdiction, with significant funding for their investigations. However, the appointment of private citizens as special counsels has raised concerns about the limits of executive power.
A 1999 regulation, instituted by former Attorney General Janet Reno, has been cited as a significant precedent in the appointment of special counsels. Since then, seven special counsels have been appointed, with four being current U.S. attorneys and three being private citizens.
Trump’s defense team successfully argued that Smith’s appointment violated the appointments clause of the Constitution, which requires federal offices to be established “by law,” meaning by Congress. The team argued that Senate-confirmed U.S. attorneys meet this criteria, but private citizens do not.
Prosecutors have countered that the appointments clause does not preclude the appointment of private citizens as special counsels, citing several statutes that support their argument. However, conservative lawyers Steven Calabresi and Gary Lawson have filed an amicus brief arguing that Smith’s appointment was unlawful.
The case is currently before the Atlanta-based Eleventh Circuit Court of Appeals, which has previously reversed one of Cannon’s decisions related to Trump. Some experts, including von Spakovsky, believe that the appellate court may rule in Trump’s favor, potentially paving the way for a Supreme Court challenge.
If the decision stands, it could have significant implications for the appointment of future special counsels, with some arguing that only current U.S. attorneys could be eligible for the role. Calabresi and Lawson have suggested that the pool of over 90 Senate-confirmed U.S. attorneys would be sufficient for an attorney general to choose from.
