Watchdog group questions legality of appointing special counsel to investigate Trump

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

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

A principal officer requires appointment by the president and confirmation by the Senate, just like other US attorneys. And Congress did not explicitly give the attorney general authority to appoint a chief prosecutor.

The expiration of the independent counsel statute following 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.

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

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

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

In 2019, the NLPC lost a challenge to the appointment of special counsel Robert Mueller in the Russia investigation, but the matter never reached the Supreme Court. In addition, the plaintiffs claim that the district and appellate courts eschewed the “Principal Question Doctrine,” regarding what agencies can and cannot do when Congress has not directly addressed the issue.

Anyone subpoenaed or charged by the special counsel’s office in this case should challenge Smith’s authority all the way to this Supreme Court regarding the “Leading Question Doctrine,” said Paul Kamenar, a lawyer for the NPLC.

“We’re going to need a client, either someone indicted or someone subpoenaed to appear before the grand jury,” Kamenar told Fox News Digital.

In 2019, the center lost in the D.C. Court of Appeals challenging the appointment of Mueller and his client, Roger Stone aide Andrew Miller.

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

Still, the NLPC believes the matter should be adjudicated by the higher court, arguing that the district and appellate courts balked at the “Major Question” doctrine.

Jack Smith was appointed to be the special counsel investigating two major investigations of Trump.
(Department of Justice)

“We lost in the district court. In the appeals court, they took four months to decide, and they dismissed in a very short, poorly argued opinion,” Kamenar said. “We couldn’t go to the Supreme Court because our client was facing prison and he has a family.”

A three-judge panel wrote the 16-page opinion in the 2019 Miller case to the U.S. Court of Appeals for the D.C. Circuit.

“Because binding precedent establishes that Congress has “by statute” the authority vested in the Attorney General to appoint the special counsel as an inferior officer, this court need go no further than to identify the specific sources of this authority,” the opinion. he says “Miller’s perfunctory references to a ‘clear statement’ argument he made in the district court are insufficient to present this issue for appeal and are lost.”

At issue is whether a special counsel, with the essential power of a US attorney or attorney general, can be appointed without Senate confirmation. This goes back to the expiration of the independent counsel statute after Ken Starr’s Clinton investigation.

Congress allowed the statute to expire in 1999. However, then-Attorney General Janet Reno’s Department of Justice established special regulation of lawyers. But Congress never approved the authority to appoint a special counsel, or someone outside the Justice Department, who was not confirmed by the Senate.

FILE: Former President Donald Trump’s Mar-a-Lago Club in Palm Beach, Florida, Tuesday, Nov. 8, 2022.
(AP Photo/Andrew Harnik)

Only two people served as special advisers. Reno appointed former Missouri Republican Sen. John Danforth in 1999 to investigate the raid on the Waco, Texas, compound that took place in 1993. 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.

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

Mueller’s team subpoenaed Miller to appear before the grand jury. The D.C. Circuit Court of Appeals affirmed the district court’s ruling, but did not address the plaintiff’s argument about whether Justice Department regulations can authorize the attorney general to appoint a prosecutor without such authorization from the congress

The NLPC’s Kamenar says recent Supreme Court rulings are relevant to the assertion that federal agencies are limited to making their own regulations without Congress.

In 2021, the Supreme Court struck down the Centers for Disease Control and Prevention’s moratorium on COVID-19 evictions. Earlier this year, the high court struck down an Environmental Protection Agency greenhouse gas emissions rule. In both cases, the reason was because the matters were not authorized by Congress.

In that case, Kamenar claims Reno overreached as attorney general with a regulation that established an office similar to an independent counsel, appointing someone from outside the department.

As with any regulation and law enacted by Congress, the special attorney regulation is weaker than the old independent counsel statute.

An independent counsel, who was appointed by a three-judge panel in federal court under a post-Watergate law, could not be fired 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 was seeking another term in office and officially launched his 2024 presidential campaign.
(Joe Raedle/Getty Images)

The question does not apply to special counsel John Durham, appointed in late 2020 by then-Attorney General Bill Barr to investigate the origins of the Russian collusion narrative and the Steele dossier. That’s because Durham, a career federal prosecutor, was nominated by Trump and confirmed bipartisanly in the Senate to serve as U.S. attorney in Connecticut.

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

Since Smith’s appointment, several issues have arisen about his past. As head of the public integrity section, in 2010 he contacted controversial IRS official Lois Lerner “to discuss how the IRS could assist in the criminal enforcement of money laundering laws.” campaigns against politically active nonprofits,” according to a 2014 report by House Republicans. Oversight Committee on the IRS Targeting Scandal of Tea Party Groups.

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He also led high-profile cases against former Virginia Gov. Bob McDonnell for accepting gifts and against former North Carolina senator and 2004 Democratic vice presidential candidate John Edwards over payments to his mistress, the Washington Examiner reported. Both cases ultimately ended in acquittals.

Meanwhile, Smith’s wife, Katy Chevigny, produced a film about former first lady Michelle Obama.