Here’s what voters should know.
Former President Donald Trump’s legal team is challenging the legality of special counsel Jack Smith’s appointment. Trump’s lawyers argue that the appointment was unconstitutional and are set to present their case before District Judge Aileen Cannon in Fort Pierce, Florida. This hearing is part of a multiday session, as reported by Politico.
The issue stems from a motion Trump filed in February, requesting the dismissal of his classified documents case. Trump alleges that Attorney General Merrick Garland violated the appointments clause by selecting Smith to oversee two prosecutions against him, according to the Washington Examiner.
Trump’s attorneys assert that the Attorney General does not have the authority to appoint a private citizen and political ally without Senate confirmation to exercise prosecutorial power. Supporting Trump’s claim, two former Republican attorneys general and two law professors argue that only two special counsels in the past 40 years (Jack Smith and Robert Mueller) were appointed without Senate confirmation as U.S. attorneys.
They highlight that the legal basis for Smith’s appointment is outdated and has gone largely unchallenged because, with few exceptions, special prosecutors before Smith were authorized by statute. This point suggests a significant procedural oversight in Smith’s appointment.
In April, Trump used Truth Social to share his view that Smith lacks the standing to defend a Washington, D.C., Circuit Court ruling on presidential immunity before the Supreme Court. Steven Calabresi, a law professor at Northwestern Pritzker School of Law, supported this argument in an article for Reason. Calabresi claimed that Smith’s appointment was unconstitutional and that, as a result, Smith does not have the legal standing to challenge the D.C. Circuit Court’s decision denying Trump’s claim of presidential immunity from criminal prosecution for actions taken while in office.
In summary, Trump’s legal team contends that Jack Smith was improperly appointed by Attorney General Garland, which undermines Smith’s authority to prosecute Trump. They argue this appointment bypassed necessary Senate confirmation, thus nullifying any actions Smith has taken since his appointment.