Former President Donald Trump’s lawyers plan to argue that the South Florida case involving Trump’s alleged mishandling of classified materials should be dismissed because the chief prosecutor was not appointed in accordance with the U.S. Constitution.
U.S. District Judge Aileen Cannon, who is overseeing Trump’s case, will hold a hearing next month to consider whether Special Counsel Jack Smith was illegally appointed.
Former U.S. Attorney General Edwin Meese III and constitutional law scholars Steven Calabresi and Gary Lawson argue in court records that Attorney General Merrick Garland violated the Constitution by giving Smith broad authority to prosecute Trump.
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That’s because Smith was a private citizen and not a government official when he was named to lead Trump’s prosecution.
Trump’s advocates maintain Garland strayed outside the Constitution’s Appointments Clause, which says the president can appoint officials deemed “principal” or “superior” officers whose jobs are established by Congress through federal law and confirmed by the Senate.
Congress can also, through law, permit agency department heads to appoint “inferior” officers.
However, none of that applies because Smith was not a government employee when Garland selected him.
Professor Seth Barrett Tillman, who also supports this argument, maintains that the Supreme Court has held that the idea of a government “officer” means a job with “tenure, duration, emolument, and duties.”
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Neither Smith nor his post have any of those.
If Smith is not an officer, as so defined, “his prosecuting anyone is entirely unlawful,” Tillman told the Times.
Meese, Calabresi, and Lawson argue that in order to be legitimate, Garland should have appointed a current U.S. Attorney or someone who serves under one.
In a separate piece, Calabresi argued that even if Smith convicts Trump, the case will likely be overturned because a majority of the Supreme Court will agree that he was improperly appointed.
“Every action that he has taken since his appointment is now null and void,” Calabresi said.
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“We do not want future U.S. Attorney Generals, such as the ones Donald Trump might appoint, if he is re-elected in 2024, to be able to pick any tough thug lawyer off the street and empower him in the way Attorney General Merrick Garland has empowered private citizen Jack Smith,” he added.
For his part, Smith maintained that he is an “inferior” officer who qualifies as an “official” whose appointment Congress allows. He also argues that this is confirmed by the fact that Congress has funded his investigations into Trump.
Smith is also prosecuting Trump for allegedly instigating the Jan. 6, 2021, riot at the U.S. Capitol.
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