Thomas Sowell
If you watch politics on television, sometimes you get to see and hear something that slips by and does not get repeated too much. This happened the other night when I learned that Jack Smith did not go through the proper channels to become a Special Council. Well shucky darn folks; maybe there is justice after all.
As I understand the process, the president nominates a lawyer who is qualified to be a Special Council to be confirmed by the US Senate. The Senate vets the prospect and if confirmed by a majority vote, the attorney becomes a federal officer designated as "Special Counsel." This did not happen.
In front of the entire country, yes in plain sight, our Attorney General, Merrick Garland appointed Jack Smith, an attorney with a terrible record of losses at the Supreme Court level, to be the "Intimidator in Chief" over Donald Trump. Smith's job was not to seek the truth but to tie up candidate Donald Trump in court on specific dates in two cases to make it hard for the former president to campaign against incumbent president Joe Biden.
Special counsel Jack Smith’s appointment was unconstitutional, leaving him powerless to obtain a quick U.S. Supreme Court decision on immunity claims by former President Donald Trump, according to an amicus brief signed by former U.S. Attorney General Edwin Meese and two law professors.
“Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,” the Dec. 20 amicus brief argues. “Improperly appointed, he has no more authority to represent the United States in this court than Bryce Harper, Taylor Swift or Jeff Bezos.”
The law professors who co-wrote the brief with Meese are Steven G. Calabresi of the Northwestern University Pritzker School of Law and Gary S. Lawson of the Boston University School of Law. 1
The brief argues that Attorney General Merrick Garland “exceeded his statutory and constitutional authority” when he appointed Smith in November 2022. Because Smith’s appointment was unconstitutional, “every action that he has taken since his appointment is now null and void,” Calabresi argued at the Volokh Conspiracy. 2
According to the Code of Federal Regulations, a special counsel must have “a reputation for integrity and impartial decisionmaking,” as well as “an informed understanding of the criminal law and Department of Justice policies.”3
A special counsel is an attorney appointed to investigate, and possibly prosecute, a case in which the Justice Department perceives itself as having a conflict or where it’s deemed to be in the public interest to have someone outside the government come in and take responsibility for a matter. 4
Had Smith been legally confirmed as the special counsel he would have had more powers than any of the 93 federal attorneys in the Justice Department. Smith would have more freedom to investigate and process the two cases without the day-to-day oversight by the Attorney General.
Getting Donald Trump indicted, convicted, and with jail time would be an enormous help to the Biden campaign. Biden would not have to go out on the campaign trail so much and it would besmirch Trump. As it is, many voters are averse to voting for someone who is in court so much. Conventional thinking on their part would be that if he is in so much trouble there must be some truth to it. Do I want to vote for a criminal to be my president? Fortunately, most of us can see through all these attacks on the former president and so far it looks as though Trump will get through all the cases and still be able to campaign. Only Donald Trump can withstand such treatment.
Resources
1. Weiss, Debra Cassens, Was Jack Smith's appointment unconstitutional? He has no more authority than Taylor Swift, amicus brief argues, ABAJOURNAL, December 31, 2023,
2. Ibid
3. Kinnard, Meg, EXPLAINER: What are special counsels and what do they do?, AP, January 12, 2023, https://apnews.com/article/iran-biden-politics-united-states-government-us-department-of-justice-b63ffc9b1042b4287a22e88672f4ef77
4. Ibid
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