Watchdog group questions legality of Special Counsel appointment to investigate Trump

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New special counsel Jack Smith’s constitutional qualifications for the position are questionable, according to a government watchdog group poised to raise questions at the Supreme Court.

The main 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) argues that it raises questions about the appointment clause of the Constitution.


A major officer requires appointment by the president and confirmation by the Senate, similar to other US attorneys. And Congress did not explicitly authorize the attorney general to appoint the chief prosecutor.

The end of the independent counsel statute following the 1990s investigation of former President Bill Clinton and the recent Supreme Court rulings striking down environmental and eviction regulations would not have much in common.

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However, the NLPC says it both balked at the appointment of Smith, a former assistant US attorney in Tennessee and former head of the Justice Department’s public integrity section. Most recently, he was war crimes prosecutor in The Hague.

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

In 2019, the NLPC lost a challenge against the appointment of special counsel Robert Mueller in the Russia investigation, but the case never reached the Supreme Court. In addition, the plaintiffs contend the district and appeals courts “key question doctrine,” what agencies can and cannot do when Congress has not directly addressed the issue.

NPLC counsel Paul Kamenaar said that anyone subpoenaed or charged by the special counsel’s office in this case should challenge Smith’s authority in this Supreme Court with respect to the “major question doctrine.”

“We will need a client, either someone who has been indicted or who has been subpoenaed to appear before a grand jury,” Kamenar told Fox News Digital.

In 2019, the center lost in the D.C. Court of Appeals a challenge to Mueller’s appointment and to Andrew Miller, an associate of his client—Roger Stone.

AG Garland named special counsel to probe Trump on Mar-a-Lago documents, Jan. 6

Miller chose to comply with the summons to avoid jail time for contempt, rather than appeal to the Supreme Court.

Nevertheless, the NLPC believes that the matter should be decided by the High Court, with the district and appeals courts deferring to addressing the “major question” doctrine.

“We lost in district court. In the court of appeals, it took four months to decide, and they threw out a very short, poorly reasoned opinion,” said Kamenar. “We were not able to appeal to the Supreme Court because our client faced prison and has a family.”

A three-judge panel at the US Court of Appeals for the DC Circuit wrote a 16-page opinion from the 2019 Miller case.

“Because binding precedent establishes that Congress has a vested authority in the Attorney General to ‘by law’ appoint special counsel as an inferior officer, this Court must go further than to identify the specific sources of this authority. There’s no need to go,” says Rai. “Miller’s cursory reference to an ‘explicit statement’ argument that he presented to the district court is insufficient to present that issue for appeal and is forfeited.”

At issue is whether a special attorney – with the necessary power of US attorney or chief prosecutor – can be nominated without Senate confirmation. it goes back to the end of independent counsel law After Ken Starr’s investigation of Clinton.

Congress allowed the law to expire in 1999. However, then-Attorney General Janet Reno’s Justice Department established a Special Counsel Regulation, But Congress never approved the right to name a special counsel, or someone outside the Justice Department, that had not been confirmed by the Senate.

FILE: Former President Donald Trump's Mar-a-Lago Club in Palm Beach, Fla., Tuesday, Nov. 8, 2022.

Only two persons served as special counsels. Reno hired former Republican Missouri Sen. John Danforth in 1999 to investigate the 1993 raid at the Waco, Texas compound. Then, in 2017 Deputy Attorney General Rod Rosenstein – after Attorney General Jeff Sessions recused himself from the case – appointed former FBI Director Mueller as special counsel to investigate Trump and Russia.

Trump on target: A look at the investigation involving the former president; From Russia to Mar-a-Lago

In other cases, such as the Valarie Plame case during the Bush administration, a Senate-approved US attorney, Patrick Fitzgerald, was designated as special prosecutor.

Mueller’s team subpoenaed Miller to appear before the grand jury. The DC Circuit Court of Appeals upheld the district court’s decision but did not address the plaintiffs’ argument whether Justice Department regulations may authorize the attorney general to appoint prosecutors without such authorization by Congress.

NLPC’s Kamenar says recent Supreme Court rulings are relevant to affirm that federal agencies are limited in their own rule-making without Congress.

The Supreme Court invalidated a 2021 COVID-19 eviction moratorium rule by the Centers for Disease Control and Prevention. Earlier this year, the high court struck down a greenhouse gas emissions rule from the Environmental Protection Agency. In both cases, the reason was that the cases were not authorized by Congress.

In this case, Kamenar argues that Reno nominated someone outside the department as attorney general with a rule establishing an office similar to an independent counsel.

As is the case with any regulation and legislation enacted by Congress, the special counsel regulation is weaker than prior independent counsel legislation.

An independent counsel, appointed by a three-judge panel to a federal court under post-Watergate law, could not be removed by the executive branch. A special counsel is appointed by the Attorney General and can be fired.

Former US President Donald Trump gestures during an event at his Mar-a-Lago home on November 15, 2022 in Palm Beach, Florida.  Trump announced that he is seeking another term in office and officially launched his 2024 presidential campaign.

The 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 the US attorney for Connecticut.

Kamenar said, “Unlike John Durham, Jack Smith was not confirmed to a position by the Senate.” “Bill Barr did the constitutionally right thing by nominating him.”

Since Smith’s appointment, a number of issues have emerged regarding his past. As head of the Public Integrity Section, he Contact Controversial IRS official Lois Lerner in 2010 to “discuss how the IRS could assist in criminal enforcement of campaign-finance laws against politically active nonprofits,” a 2014 report by Republicans on the House Oversight Committee According to the group about the IRS targeting scam of the Tea Party.

he also led Chief cases The Washington Examiner reported that against former Virginia Gov. Bob McDonnell for accepting gifts and against former North Carolina senator and 2004 Democratic vice presidential nominee John Edwards for payments to his mistress. Both cases ultimately ended in acquittals.

Meanwhile, Smith’s wife, Katie Chevigny, produced a film about former First Lady Michelle Obama.

Watchdog group questions legality of Special Counsel appointment to investigate Trump

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