New special counsel Jack Smith’s constitutional eligibility for the post is questionable, according to a government watchdog group poised to take the question to the Supreme Court.
The main question has nothing to do with Smith’s legal credentials to be appointed to investigate the documents seized from former President Donald Trump’s home. Rather, the National Legal and Policy Center (NLPC) says it raises questions about the constitution’s appointment clause.
A principal officer requires appointment by the president and confirmation by the Senate, as do other U.S. attorneys. And Congress did not expressly authorize the Attorney General to appoint the Chief Prosecutor.
The expiration of the independent counsel law after the 1990s investigation of former President Bill Clinton and recent Supreme Court decisions striking down environmental and eviction regulations would not seem to have much in common.
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However, the NLPC says the two balked at the appointment of Smith, a former assistant U.S. attorney in Tennessee and former chief of the Justice Department’s public integrity section. Most recently, he was a war crimes prosecutor at The Hague.
Days after Trump announced he would run for president in 2024, Attorney General Merrick Garland subpoenaed Smith for documents kept at the former president’s Mar-a-Lago home and an investigation into Trump’s challenge to the 2020 election results. Appointed as Special Counsel for
In 2019, the NLPC lost a challenge to the appointment of special counsel Robert Mueller in the Russia investigation, but the case never reached the Supreme Court. Also, the plaintiffs claim that district and appellate courts have rejected the “large questions principle,” which governs what agencies can and cannot do when Congress has not directly addressed the issue.
Paul Commoner, a lawyer for the NPLC, said that anyone subpoenaed or indicted by the special counsel’s office in the case would challenge Smith’s authority in the Supreme Court regarding the “large questions rule.” Must be challenged.
“We will need a client, either someone who has been indicted or someone who has been arraigned to appear before a grand jury,” Kamnar told Fox News Digital.
In 2019, the Center lost in the D.C. Court of Appeals a challenge to Mueller’s appointment and his client – Roger Stone aide Andrew Miller.
AG Garland names special counsel to investigate Trump on Mar-a-Lago documents, Jan. 6
Rather than appeal to the Supreme Court, Miller chose to comply with the plea to avoid jail time for contempt of court.
Still, the NLPC believes the issue should be decided by the high court, arguing that the district and appellate courts declined to address the “bigger question” doctrine.
“We lost in the district court. In the appellate court, it took four months to decide, and they dismissed in a very short, poorly reasoned opinion,” Kaminar said. “We were not able to appeal to the Supreme Court because our client was facing jail and has a family.”
A three-judge panel wrote the 16-page opinion from the 2019 Miller case to the U.S. Court of Appeals for the D.C. Circuit.
“Since binding precedent establishes that Congress has the authority “statutory” in the Attorney General to appoint a special counsel as an inferior officer, this Court need do no more than identify the specific sources of that authority. No need to go,” Roy said. say. “Miller’s cursory references to a “plain statement” argument that he presented to the district court are insufficient to present this issue for appeal and are overruled.”
At issue is whether a special counsel with the necessary powers of the U.S. attorney or chief prosecutor can be named without Senate confirmation. It reverts to expiration. Independent lawyer Law After Kenstar’s investigation into Clinton.
Congress allowed the law to expire in 1999. However, then-Attorney General Janet Reno’s Justice Department issued a Special Council Regulation. But Congress has never approved the authority to name a special counsel, or anyone outside the Justice Department, without Senate confirmation.
Only two persons acted as special advisers. Reno appointed former Republican Missouri Sen. John Danforth in 1999 to investigate the 1993 raid on the compound in Waco, Texas. Then, in 2017, Deputy Attorney General Rod Rosenstein — after Attorney General Jeff Sessions recused himself from the case — was appointed. Former FBI director Mueller as special counsel for Trump and Russia probe.
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In other cases, such as the Valerie Plame case during the Bush administration, Senate-confirmed U.S. Attorney Patrick Fitzgerald was named as special prosecutor.
Mueller’s team ordered Miller to appear before a grand jury. The D.C. Circuit Court of Appeals upheld the district court’s decision but did not address the plaintiff’s argument about whether Justice Department regulations authorize the attorney general to appoint prosecutors without congressional authorization.
NLPC’s Kamnar contends that recent Supreme Court decisions are relevant in confirming that federal agencies are limited in their rulemaking without Congress.
The Supreme Court struck down the Centers for Disease Control and Prevention’s 2021 suspension of COVID-19 exclusions. Earlier this year, the high court struck down the Environmental Protection Agency’s greenhouse gas emissions rule. In both cases, the reason was that the cases were not authorized by Congress.
In that case, Commoner contended that Reno overstepped the bounds as attorney general with a regulation that created an office similar to that of an independent counsel, naming someone outside the department.
Like any statute and law enacted by Congress, the Special Counsel Rule is weaker than the ex-independent counsel statute.
An independent counsel, appointed to a federal court by a three-judge panel under post-Watergate law, could not be fired by the executive branch. A special counsel is appointed by the Attorney General and can be fired.
That question does not apply to Special Counsel John Durham, who was appointed in late 2020 by then-Attorney General Bill Barr to investigate the Russia collusion narrative and the origins of the Steele dossier. That’s because Durham, a career federal prosecutor, was nominated by Trump and confirmed on a bipartisan basis in the Senate to serve as U.S. attorney for Connecticut.
“Jack Smith was not confirmed for office by the Senate, unlike John Durham,” Commoner said. “Bill Barr did the right thing constitutionally in his nomination.”
Since Smith’s appointment, several issues have surfaced about his past. As head of the Public Integrity Section, he Contacted In 2010, controversial IRS official Louis Lerner “discussed how the IRS could assist in the criminal enforcement of campaign finance laws against politically active nonprofits,” according to a 2014 House Oversight report. According to a 2014 report by Republicans on the committee about the scandal targeting the Tea Party to the IRS, groups
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He also led. Prominent Cases against former Virginia Gov. Bob McDonnell for accepting gifts and former North Carolina senator and 2004 Democratic vice presidential nominee John Edwards for paying his mistress, the Washington Examiner reported. Both cases ultimately ended in acquittals.
Meanwhile, Smith’s wife, Katie Chevney, produced a film about former first lady Michelle Obama.