US Politics

Watchdog group questions legality of Special Counsel appointment to investigate Trump

U.S. Attorney General Merrick Garland delivers remarks at the U.S. Justice Department Building on November 18, 2022 in Washington, DC. 

New special counsel Jack Smith’s constitutional qualifications for the position are suspect, according to a government watchdog group prepared to take the question to the Supreme Court

The core question has nothing to do with Smith’s legal credentials for the appointment to investigate documents seized from former President Donald Trump’s home. Rather, the National Legal and Policy Center (NLPC) contends it raises questions about the Appointments Clause of the Constitution. 

A principal officer requires appointment by the president and confirmation by the Senate, the same as other U.S. Attorneys. And Congress did not explicitly give the attorney general authority to appoint a chief prosecutor. 

The expiration of the independent counsel statute after the 1990s investigations into former President Bill Clinton and more recent Supreme Court decisions striking down environmental and eviction regulations would not seem to have much in common. 

TRUMP SAYS HE ‘WON’T PARTAKE’ IN SPECIAL COUNSEL INVESTIGATION, SLAMS AS ‘WORST POLITICIZATION OF JUSTICE’

U.S. Attorney General Merrick Garland delivers remarks at the U.S. Justice Department Building on November 18, 2022 in Washington, DC. 
(Anna Moneymaker/Getty Images)

However, the NLPC says both bare on the appointment of Smith, a former assistant U.S. attorney in Tennessee and former chief of the Justice Department’s public integrity section. More recently, he was a war crimes prosecutor with The Hague.

Days after Trump announced he would run for president in 2024, Attorney General Merrick Garland named Smith as special counsel to investigate both the documents kept at the former president’s Mar-a-Lago home and Trump’s challenge to the 2020 election results. 

In 2019, the NLPC lost a challenge against the appointment of special counsel Robert Mueller in the Russia investigation, but the matter never reached the Supreme Court. Also, the plaintiffs contend the district and appeals courts ducked the “Major Questions Doctrine,” regarding what agencies can and can’t do when Congress has not spoken directly to the issue. 

Anyone subpoenaed or indicted by the special counsel’s office in this case should challenge Smith’s authority all the way to this Supreme Court regarding the “Major Questions Doctrine,” said Paul Kamenar, counsel to the NPLC.

“We will need a client, either someone who is indicted or someone who is subpoenaed to appear before the grand jury,” Kamenar told Fox News…

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