{"id":2335090,"date":"2024-09-01T07:22:02","date_gmt":"2024-09-01T11:22:02","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/the-problem-with-jack-smiths-appointment-as-special-counsel-washington-examiner\/"},"modified":"2024-09-01T07:29:00","modified_gmt":"2024-09-01T11:29:00","slug":"the-problem-with-jack-smiths-appointment-as-special-counsel-washington-examiner","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/the-problem-with-jack-smiths-appointment-as-special-counsel-washington-examiner\/","title":{"rendered":"The problem with Jack Smith\u2019s appointment as special counsel &#8211; Washington Examiner"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">24<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fthe-problem-with-jack-smiths-appointment-as-special-counsel-washington-examiner%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=2335090&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><p>The article discusses\u2063 the \u2062contentious appointment of Jack Smith as special counsel and <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/thaddeus-g-mccotter-on-the-question-of-kaepernick-kapler-kerr\/\" title=\"Thaddeus G. McCotter: On the Question of Kaepernick, Kapler, &amp; Kerr\">recent developments surrounding<\/a> his legal standing following a judge&#8217;s decision that questioned the legitimacy of special counsels like him. Smith has \u2063been involved in <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/supreme-court-will-hear-boston-marathon-bomber-execution-case\/\" title=\"Supreme Court Will Hear Boston Marathon Bomber Execution Case\">high-profile cases<\/a>, notably the prosecution of former President\u200c Donald Trump regarding allegations under the Espionage Act. The \u200djudge, appointed by Trump, ruled that Smith&#8217;s appointment violated the Appointment Clause \u200bof the Constitution, leading to political\u200b and\u200d legal criticisms especially from <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/billionaire-mega-donor-at-center-of-hunter-biden-art-sales-raises-ethics-concerns\/\" title=\"Billionaire Mega-Donor At Center Of Hunter Biden Art Sales Raises Ethics Concerns\">left-leaning observers<\/a>.<\/p>\n<p>The discussion\u200c contrasts Smith\u200d with another special counsel, \u200cDavid Weiss, who was a sitting U.S. \u2064attorney when appointed and thus considered legitimate.\u200d The legal disputes pivot around the arguments regarding the constitutionality of appointing private individuals as special counsels. While some\u2064 believe that Smith&#8217;s appointment\u2063 is lawful, others, including legal scholars, argue that it may breach precedents set for special counsels. The backlash from Smith&#8217;s appointment reflects broader tensions regarding the \u200bindependence and powers of special counsels, with implications for how future appointments might be structured. The article\u200b underscores the controversies\u200d surrounding \u2062special\u200b counsels, the legal foundations for their appointments, and ongoing legal battles impacting notable figures involved in <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wnba-superstar-brittney-griner-heads-to-sham-trial-russian-court-system-under-microscope\/\" title=\"WNBA Superstar Brittney Griner Heads to \u201cSham Trial,\u201d Russian Court System Under Microscope\">politically sensitive cases<\/a>.  <\/p>\n<p class=\"readmore\">\n    <button onclick=\"showReadMore()\" id=\"readmorebtn\">Read more&#8230;<\/button>\n<\/p>\n<hr id=\"line\">\n<span id=\"more\"><\/p>\n<p><?xml encoding=\"utf-8\" ?><?xml encoding=\"utf-8\" ?><?xml encoding=\"utf-8\" ?><?xml encoding=\"utf-8\" ?><?xml encoding=\"utf-8\" ?><?xml encoding=\"utf-8\" ?><\/p>\n<div class=\"tdb-block-inner td-fix-index\"><span class=\"tdb-mobile-menu-button\"><i class=\"tdb-mobile-menu-icon td-icon-mobile\"><\/i><\/span><\/div>\n<div class=\"tdb-block-inner td-fix-index\"><span class=\"tdb-header-search-button-mob dropdown-toggle\" data-toggle=\"dropdown\"><i class=\"tdb-mobile-search-icon td-icon-search\"><\/i><\/span><\/div>\n<div class=\"tdb-block-inner td-fix-index\"><\/div>\n<div class=\"tdb-block-inner td-fix-index\"><span class=\"tdb-mobile-menu-button\"><i class=\"tdb-mobile-menu-icon td-icon-mobile\"><\/i><\/span><\/div>\n<div class=\"tdb-block-inner td-fix-index\">\n<div class=\"tdb-drop-down-search\" aria-labelledby=\"td-header-search-button\">\n<div class=\"tdb-drop-down-search-inner\">\n<form method=\"get\" class=\"tdb-search-form\" action=\"https:\/\/www.washingtonexaminer.com\/\"><\/form>\n<div class=\"tdb-aj-search\"><\/div>\n<\/div>\n<\/div>\n<p><a href=\"http:\/\/www.washingtonexaminer.com\/#\" role=\"button\" aria-label=\"Search\" class=\"tdb-head-search-btn dropdown-toggle\" data-toggle=\"dropdown\"><i class=\"tdb-search-icon td-icon-search\"><\/i><\/a><\/div>\n<div class=\"tdb-block-inner td-fix-index\"><\/div>\n<div class=\"tdb-block-inner td-fix-index\">\n<h1 class=\"tdb-title-text\">The problem with Jack Smith&rsquo;s appointment as special counsel<\/h1>\n<div><\/div>\n<div class=\"tdb-title-line\"><\/div>\n<\/div>\n<div class=\"tdb-block-inner td-fix-index\"><\/div>\n<div class=\"tdb-block-inner td-fix-index\"><\/div>\n<div class=\"tdb-block-inner td-fix-index\">\n<div id=\"Brid_1742772\" class=\"tpd-featured-video bridtv\"><\/div>\n<p><a href=\"https:\/\/www.washingtonexaminer.com\/tag\/Jack-Smith\" target=\"_blank\" rel=\"noopener\" title=\"Jack Smith\">Jack Smith<\/a> took his first stab this week at defending his legitimacy before an appeals court after a judge <a href=\"https:\/\/www.washingtonexaminer.com\/news\/justice\/3082471\/judge-dismisses-trump-classified-documents-case\/\">found<\/a> there were &ldquo;very few, if any&rdquo; special counsels like him and abruptly blew up his classified documents case against former President <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/donald-trump\" target=\"_blank\" rel=\"noopener\" title=\"Donald Trump\">Donald Trump<\/a>.<\/p>\n<div class=\"article-paywall\">\n<p>Cannon, a Trump appointee, took Smith&rsquo;s serious Espionage Act allegations against the former president and turned them into a case study on special counsel power. The move angered left-leaning legal observers, who criticized her for defying long-standing precedent.<\/p>\n<p>Two similarly high-profile defendants who are subjects of a separate special counsel prosecution, <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/Hunter-Biden\/\" target=\"_blank\" rel=\"noopener\" title>Hunter Biden<\/a> and Alexander Smirnov, attempted to take cues from Cannon and get their charges dropped, but they were unsuccessful.<\/p>\n<p>The arguments between Smith and Trump that led to Cannon&rsquo;s controversial order involved tangling over language found in both the Constitution and numerous federal statutes.<\/p>\n<p>Hans von Spakovsky, a senior legal fellow at the <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/conservative\/\" target=\"_blank\" rel=\"noopener\" title>conservative<\/a> Heritage Foundation who worked at the DOJ for four years, distilled the sparring down to one argument.<\/p>\n<p>&ldquo;David Weiss is a legitimate special counsel because he&rsquo;s a current U.S. attorney, and that&rsquo;s the difference,&rdquo; von Spakovsky told the <em>Washington Examiner<\/em>.<\/p>\n<h2 class=\"wp-block-heading\">Smith versus Weiss<\/h2>\n<p>Attorney General <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/Merrick-Garland\" target=\"_blank\" rel=\"noopener\" title>Merrick Garland<\/a> appointed David Weiss as special counsel in August 2023, and Weiss went on to bring two criminal indictments against Biden and one against Smirnov.<\/p>\n<p>When Garland granted Weiss special counsel authority, Weiss was the sitting U.S. attorney of Delaware, a position that required the Senate to vote to confirm him.<\/p>\n<p>Weiss brought charges against Biden in <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/California\/\" target=\"_blank\" rel=\"noopener\" title>California<\/a>, and the first son twice attempted to argue there that Weiss&rsquo;s appointment was unlawful. The judge ripped apart Biden&rsquo;s argument as unconvincing. When the first son used Cannon&rsquo;s decision to raise his argument again, the judge rejected Biden&rsquo;s request, saying it contained no new legal theories.<\/p>\n<p>Special counsels traditionally operate independently or mostly independently of the attorney general, have broad jurisdiction to prosecute, and a deep well of funding for their work. The attorney general or president designates them to handle politically scandalous cases, which have, in the past, included the <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/Bill-Clinton\/\" target=\"_blank\" rel=\"noopener\" title>Bill Clinton<\/a> and Monica Lewinsky affair, the Waco, Texas, siege, and claims of Russian interference in the 2016 election.<\/p>\n<p>Since a 1999 regulation instituted by former Attorney General Janet Reno, which attorneys and judges have widely cited as significant, seven special counsels have been appointed.<\/p>\n<p>Four of them, Weiss, Robert Hur, John Durham, and Patrick Fitzgerald, were U.S. attorneys when they were selected. The other three, Smith, John Danforth, and Robert Mueller, were private citizens.<\/p>\n<h2 class=\"wp-block-heading\">Appointing private citizens<\/h2>\n<p>Trump&rsquo;s <a href=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/federal-judge-gives-hunter-biden-exactly-what-he-wanted-in-tax-trial\/\" title=\"Judge Grants Hunter Biden&#039;s Request in Tax Trial\">defense team successfully argued<\/a> to Cannon that Smith&rsquo;s role violated the appointments clause of the <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/Constitution\/\" target=\"_blank\" rel=\"noopener\" title>Constitution<\/a> and that no existing law adequately made up for that deficiency.<\/p>\n<p>The appointments clause requires federal offices not designated in the Constitution, such as the Office of Special Counsel, to be established &ldquo;by law,&rdquo; meaning by Congress. Senate-confirmed U.S. attorneys would meet that criteria, Trump&rsquo;s attorneys argued.<\/p>\n<figure class=\"wp-block-image size-full\"><figcaption class=\"wp-element-caption\">Special counsel Jack Smith speaks about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at a Department of Justice office in Washington. (AP Photo\/Jacquelyn Martin)<\/figcaption><\/figure>\n<p>Cannon agreed with Trump, saying in her 93-page order that &ldquo;the appointment of private citizens like Mr. Smith&mdash;as opposed to already-retained federal employees&mdash;appears much closer to the exception than the rule.&rdquo;<\/p>\n<p>Prosecutors cited several statutes to argue on behalf of Smith in their appeal, which is sitting before the <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/Atlanta\/\" target=\"_blank\" rel=\"noopener\" title>Atlanta<\/a>-based Eleventh Circuit Court of Appeals, that some special counsels were &ldquo;from within the Department and some [were] brought into the Department. Courts uniformly rejected challenges to those appointments.&rdquo;<\/p>\n<p>Prosecutors also defended Smith&rsquo;s prior standing as a private citizen. Smith once prosecuted war crimes in Kosovo and served as an acting U.S. attorney at the DOJ. But he was never in a Senate-confirmed position.<\/p>\n<p>&ldquo;To the extent the district court used the term &lsquo;private citizen&rsquo; to refer to someone who was not already a member of the Department of Justice before receiving his commission, that definition applies equally to every member of the Department and has no relevance to the Appointments Clause or to the statutes authorizing the appointment of Special Counsel Smith,&rdquo; prosecutors argued.<\/p>\n<p>Steven Calabresi and Gary Lawson are two <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/lawyers\/\" target=\"_blank\" rel=\"noopener\" title>lawyers<\/a> who filed an amicus brief with former Attorney General Edwin Meese on the topic of Smith&rsquo;s appointment in which they condemned it as unlawful. Conservative Justice Clarence Thomas later raised concerns in a concurring opinion that Smith&rsquo;s appointment was in violation of the separation of powers.<\/p>\n<p>And while that activity all fell on the right side of the political spectrum, Calabresi and Lawson were consistent when they thoroughly deconstructed Mueller&rsquo;s appointment in 2019 in a 70-page Notre Dame Law Review&nbsp;<a href=\"https:\/\/scholarship.law.nd.edu\/cgi\/viewcontent.cgi?article=4873&amp;context=ndlr\" target=\"_blank\" rel=\"noreferrer noopener\">entry<\/a>.<\/p>\n<p>&ldquo;There was neither the legal authority nor any need to pluck Robert Mueller out of retirement and private life, and make him unconstitutionally one of the most powerful people in Washington,&rdquo; the pair wrote.<\/p>\n<h2 class=\"wp-block-heading\">How to appoint future special counsels<\/h2>\n<p>The Eleventh Circuit has reversed a Trump-related decision by Cannon before, but some, including von Spakovsky, think the appellate court could rule in Trump&rsquo;s favor.<\/p>\n<p>Von Spakovsky said the <a href=\"https:\/\/www.washingtonexaminer.com\/tag\/Supreme-Court\" target=\"_blank\" rel=\"noopener\" title>Supreme Court<\/a> could, before long, be presented with an opportunity to rein in special counsel appointments.<\/p>\n<p>&ldquo;If this decision holds, and I expect that it&rsquo;s going to go all the way to the US Supreme Court, in the future, the only person that the attorney general could hire as a special counsel would be someone who&rsquo;s already working for the Justice Department and is a U.S. Attorney,&rdquo; he said.<\/p>\n<p><a href=\"https:\/\/www.washingtonexaminer.com\/\" target=\"_blank\" rel=\"noopener\" title=\"\"><strong><\/strong><\/a><\/p>\n<p>Calabresi and Lawson expressed similar sentiments, saying there were more than 90 Senate-confirmed U.S. attorneys and that that pool should be sufficient for an attorney general.<\/p>\n<p>&ldquo;Our reading of the relevant statutes and the Appointments Clause would allow a future Attorney General to ask any of the existing U.S. Attorneys to serve as a special counsel in a case of alleged presidential wrongdoing,&rdquo; they wrote. &ldquo;That arrangement is perfectly constitutional.&rdquo;<\/p>\n<\/div>\n<p> <script data-cfasync=\"false\" src=\"http:\/\/www.washingtonexaminer.com\/cdn-cgi\/scripts\/5c5dd728\/cloudflare-static\/email-decode.min.js\"><\/script><script>!function(){var g=window;g.googletag=g.googletag||{},g.googletag.cmd=g.googletag.cmd||[],g.googletag.cmd.push(function(){g.googletag.pubads().setTargeting(\"has-featured-video\",\"true\")})}();<\/script><script>var _bp=_bp||[];_bp.push({\"div\":\"Brid_1742772\",\"obj\":{\"id\":\"27789\",\"width\":\"1280\",\"height\":\"720\",\"stickyDirection\":\"below\",\"video\":\"1742772\"}});<\/script><script defer src=\"https:\/\/services.brid.tv\/player\/build\/brid.min.js\"><\/script><\/div>\n<div class=\"tdb-block-inner td-fix-index\"><\/div>\n<div class=\"tdb-block-inner td-fix-index\"><\/div>\n<p><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"<p>The issue surrounding Jack Smith&#8217;s appointment as special counsel has come to the forefront this week as he attempted to justify his legitimacy in an appeals court. This follows a judge&#8217;s ruling that indicated there are &#8220;very few, if any&#8221; special counsels comparable to him, which significantly impacted his case involving classified documents against former President Donald Trump. Judge Cannon, appointed by Trump, transformed Smith\u2019s serious allegations under the Espionage Act into a discussion about the powers of special counsels. This decision drew criticism from left-leaning legal analysts who accused her of disregarding established legal precedents.<\/p>\n<p>In a separate case involving Hunter Biden and Alexander Smirnov\u2014who are also subjects of a different special counsel investigation\u2014both tried to leverage Cannon\u2019s ruling in their favor but were unsuccessful. The disputes between Smith and Trump that led to Cannon&#8217;s contentious order revolved around interpretations of language found in both the Constitution and various federal laws.<\/p>\n<p>Hans von Spakovsky, a senior fellow at the conservative Heritage Foundation with prior experience at the DOJ, summarized the debate by stating that David Weiss is considered a legitimate special counsel because he is currently serving as U.S. attorney\u2014a distinction not applicable to Smith.<\/p>\n<p>Attorney General Merrick Garland appointed David Weiss as special counsel in August 2023; Weiss subsequently filed two criminal charges against Biden and one against Smirnov. When Garland conferred special counsel authority upon Weiss, he was already serving as Delaware\u2019s U.S. attorney\u2014a position confirmed by Senate vote. Biden attempted twice to argue that Weiss&#8217;s appointment was unlawful during proceedings in California; however, these arguments were dismissed by judges.<\/p>\n<p>Traditionally, special counsels operate independently or mostly independently from the attorney general and have broad prosecutorial powers along with substantial funding for their investigations. They are typically appointed for politically sensitive cases such as those involving Bill Clinton or Russian interference in elections.<\/p>\n<p>Since regulations established by former Attorney General Janet Reno in 1999\u2014which have been frequently referenced\u2014seven individuals have been designated as special counsels; four were U.S attorneys at their time of appointment while three were private citizens like Smith.<\/p>\n<p>Trump\u2019s defense team successfully argued before Judge Cannon that Smith\u2019s role breached constitutional provisions regarding appointments since it requires federal offices not explicitly mentioned in the Constitution (like Special Counsel) be created &#8220;by law,&#8221; meaning through Congress approval\u2014criteria met only by Senate-confirmed U.S attorneys according to Trump&#8217;s lawyers.<\/p>\n<p>Cannon concurred with this viewpoint stating her lengthy order noted that appointing private citizens like Smith rather than existing federal employees seems more like an exception than standard practice.<\/p>\n<p>Prosecutors supporting Smith cited several statutes during their appeal currently pending before Atlanta&#8217;s Eleventh Circuit Court arguing past courts have consistently rejected challenges regarding similar appointments within government departments.<br \/>\nThey also defended Smith&#8217;s previous experience despite him never holding a Senate-confirmed position.<br \/>\nTwo lawyers filed an amicus brief criticizing Smith\u2019s appointment alongside former Attorney General Edwin Meese labeling it unlawful while Justice Clarence Thomas raised concerns about potential violations concerning separation of powers related to this matter.<br \/>\nCalabresi and Lawson previously criticized Robert Mueller\u2019s appointment similarly suggesting there was no justification for pulling him out of retirement into such significant power without proper authority or necessity.<br \/>\nLooking ahead towards future appointments for similar roles they suggested existing Senate-confirmed U.S attorneys should suffice allowing future Attorneys General constitutional means when selecting new appointees amidst allegations tied directly back towards presidential misconducts without needing outside candidates lacking confirmation status altogether<\/p>\n","protected":false},"author":49,"featured_media":2335091,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"https:\/\/www.washingtonexaminer.com\/wp-content\/uploads\/2024\/07\/Jack-Smith-06.webp","fifu_image_alt":"","footnotes":""},"categories":[538],"tags":[13993,32463,32779,32482,32076],"class_list":["post-2335090","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-washington-examiner","tag-appointment","tag-jack-smith","tag-legal-issues","tag-special-counsel","tag-washington-examiner"],"fifu_image_url":"https:\/\/www.washingtonexaminer.com\/wp-content\/uploads\/2024\/07\/Jack-Smith-06.webp","_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2335090","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/49"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=2335090"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/2335090\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2335091"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=2335090"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=2335090"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=2335090"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}