By Jack Phillips
Former President Donald Trump on March 9 wrote that special counsel Jack Smith made an admission in a court filing in connection to how he was appointed as a special prosecutor in the classified documents case against the former president.
In a court filing last week, the special counsel wrote that he was lawfully appointed to his position by Attorney General Merrick Garland, rejecting arguments filed by President Trump’s attorneys and third parties. They had asserted that the attorney general violated the Constitution’s Appropriations Clause, which states that federal officers have to first be appointed by Congress, not specific federal agencies.
“The Attorney General has the statutory authority to appoint a Special Prosecutor,” Mr. Smith and his team wrote in the filing, submitted to U.S. District Judge Aileen Cannon. They wrote that Section 533 confirms that “the Attorney General may appoint officials … to detect and prosecute crimes against the United States“ and later added, ”Precedent establishes that the Attorney General has statutory authority to appoint the Special Counsel.”
Also in the brief, prosecutors wrote that although “he remains subject to Attorney General direction and supervision, he also retains ‘a substantial degree of independent decision making,’” and isn’t part of the regular Department of Justice “chain of command.”
The filing was made in connection to criminal allegations that the 45th president illegally kept classified documents at his Mar-a-Lago residence after he left the White House. He has denied the allegations and pleaded not guilty to the charges.
Over the weekend, President Trump wrote on Truth Social, “While Crooked Joe Biden and his Cronies have claimed from the outset they have nothing to do with Jack Smith’s Election Interference case against me, Smith himself admitted in a Court Filing yesterday that he ’remains subject to Attorney General direction and supervision,’ and that includes Biden.”
“So, although he denies it, Garland is carrying out the orders from his boss to prosecute me, and to interfere in the 2024 Election. No sitting President has ever abused the Power of his Office so blatantly to pursue his Political Opponent in an Election year,” he wrote. “This is the Greatest Threat to Democracy in the History of our Country! Joe Biden should stop the Ridiculous and Democracy Destroying Prosecutions.”
Biden administration officials and Mr. Garland have denied that they are directing Mr. Smith to target President Trump for political purposes. Mr. Garland has also said that he had the authority to appoint special counsel in the case and has said that Mr. Smith has a “commitment to both independence and accountability” regarding the cases.
President Trump’s comment comes after Judge Cannon ruled that two amicus briefs could be filed to support President Trump’s arguments in the case. One was filed by a former U.S. attorney general, Edwin Meese, who argued that Mr. Smith was illegally appointed by Mr. Garland and that the case should be dismissed.
The Reagan-era attorney general, along with two law professors, argued that Mr. Smith has “no authority to prosecute” the case because he was not properly appointed as a federal officer. They wrote that only Congress has the ability to create new federal officials and that the Constitution doesn’t grant the president or heads of federal agencies the ability to create any offices or “appoint whatever officers they deem appropriate.”
“Neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria. He wields tremendous power, answerable to no one,” they continued. “And that is a serious problem for the rule of law—whatever one may think of former President Trump or the conduct Smith challenges in the underlying case.”
In January 2023, Mr. Garland told reporters that he did possess the constitutional right to appoint the special counsel to both the classified documents case and a case accusing the former president of trying to subvert the 2020 election, which President Trump also denies.
“When I appointed Mr. Smith, I did so because it underscores the Justice Department’s commitment to both independence and accountability,” the attorney general said at the time. “Mr. Smith is a veteran career prosecutor. He has assembled a group of experienced and talented prosecutors and agents who share his commitment to integrity and the rule of law. Any questions about this matter will have to be answered by their filings.”
Another brief filed by former Trump adviser Stephen Miller’s America First Legal Foundation was also accepted by Judge Cannon. They argued that the National Archives and Records Administration overstepped its authority when it referred the classified documents case to the DOJ.
“The Court has reviewed the motions and finds that the proposed amici bring to the Court’s attention relevant matter that may be of considerable help to the Court in resolving the cited pretrial motions,” Judge Cannon wrote in a paperless order last week, referring to the two submissions. “The amicus briefs are accepted for Court consideration.”
