Of the many pending motions in the confidential documents case, U.S. District Judge Aileen Cannon is holding a hearing on Friday on something that gets to the heart of the matter: whether special advisor Jack Smith was legally appointed. donald trump is supported in its effort by third parties – called “amici” or “friends of the court” – who are attacking this appointment.
Exceptionally, these third parties may present their claims directly to the judge, together with the defense and the prosecution, who will have the presence of an external “friend”.
The legal issue in the center of the audience is the Constitution appointments clausewhich says that the president:
Under that clause, part of the dispute comes down to what kind of “officer” Smith is: a “major” who would need Senate confirmation (which Smith does not have), or a “inferior” officer working under the U.S. Attorney. General. Merrick Garland (the “head” of the Department of Justice), who appointed Smith under statutory authority vested in the attorney general. Supreme Court precedent and the approval of special counsel Robert Mueller by the U.S. Court of Appeals for the D.C. Circuit support the latter position that Smith is an inferior officer properly appointed by Garland.
However, an outside group consisting of former Attorney General Ed Meese (who served under Ronald Reagan) and Federalist Society co-president Steven Calabresi, argued in a brief summary before the hearing that Garland had no authority to appoint Smith and that the special counsel cannot be a lesser official as he “exercises tremendous power, answerable to no one.” (They soften their own sweeping claim later in their report, writing that Smith “effectively answers to no one.”)
Another group features law professor Seth Barrett Tillman, who also supported Trump’s appeal in the case of the insurrection clause of the 14th Amendment, Trump vs. Andersonin which the Supreme Court Trump’s presidential eligibility given the green light earlier this year despite his involvement in the January 6, 2021 attack on the Capitol. Tillman wanted to participate at that Supreme Court hearing too, but the judges rejected it. Here he argues to Cannon that Smith is not an “officer” but a mere employee who cannot exercise the power of a U.S. attorney.
Trump-aligned outside groups somewhat contradict each other and Trump’s position, who calls Smith “at best” An employee. Still, if Cannon clings to any of the defense’s allegations, it will threaten the prosecution itself. The case does not have a trial date, and whether a trial will take place depends in part on the outcome of the November presidential election, in which a Trump victory would likely crush this case and the federal election interference case in Washington.
It is clear that the special prosecutor is defending his authority. Contrary to the claim supported by Meese, Smith maintains that he is an “inferior” officer, noting that Garland supervises him and can remove him, review his decisions, and even overturn them. In response To Tillman’s statement, Smith cites Supreme Court precedent to support the idea that the special advocate qualifies as an officer.
Supporting Smith is the third outside group appearing Friday, which includes former prosecutors and elected officials. Calling the challenge against the special prosecutor “demonstrably incorrect,” they echo Smith’s argument that he is an inferior official whose appointment was authorized. “The Special Prosecutor’s circumscribed role and jurisdiction, limited mandate, and effective control of the Attorney General make him an inferior official,” they write. They will be represented by Matthew Seligman, with law professor Josh Blackman defending Tillman and Gene Schaerr representing the Meese group.
So if the issue is as clear as Seligman and Smith say, why is Cannon holding this unusual hearing?
Good question. She doesn’t need to do this; she could have simply denied Trump’s motion to dismiss without a hearing, let alone one attended by outsiders.
But we learn that Cannon does things his way, often to Trump’s benefit, if only through the delay that his approach defeats him when it ultimately rules against him. She scheduled a Monday morning hearing on a related Trump motion under another constitutional provision — the Appropriations Clause — contest Smith’s appointment and funding; only on Monday afternoon will she hear an argument on Smith’s motion to modify Trump’s release conditions to stop him from making statements falsely suggesting that federal authorities attempted to assassinate him when they executed the search warrant at Mar-a-Lago.
While the Trump appointee may naturally be inclined toward the claims promoted by conservative legal luminaries, holding this unnecessary constitutional symposium is a victory for the defendant.
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This article was originally published in MSNBC.com
