New special counsel Jack Smith’s constitutional qualifications for the position are suspect, according to a government watchdog group prepared to take the question to the Supreme Court.
The core question has nothing to do with Smith’s legal credentials for the appointment to investigate documents seized from former President Donald Trump's home. Rather, the National Legal and Policy Center (NLPC) contends it raises questions about the Appointments Clause of the Constitution.
A principal officer requires appointment by the president and confirmation by the Senate, the same as other U.S. Attorneys. And Congress did not explicitly give the attorney general authority to appoint a chief prosecutor.
The expiration of the independent counsel statute after 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.
However, the NLPC says both bare on the appointment of Smith, a former assistant U.S. attorney in Tennessee and former chief of the Justice Department’s public integrity section. More recently, he was a war crimes prosecutor with The Hague.
Days after Trump announced he would run for president in 2024, Attorney General Merrick Garland named Smith as special counsel to investigate both the documents kept at the former president’s Mar-a-Lago home and Trump’s challenge to the 2020 election results.
In 2019, the NLPC lost a challenge against the appointment of special counsel Robert Mueller in the Russia investigation, but the matter never reached the Supreme Court. Also, the plaintiffs contend the district and appeals courts ducked the "Major Questions Doctrine," regarding what agencies can and can’t do when Congress has not spoken directly to the issue.
Anyone subpoenaed or indicted by the special counsel’s office in this case should challenge Smith’s authority all the way to this Supreme Court regarding the "Major Questions Doctrine," said Paul Kamenar, counsel to the NPLC.
"We will need a client, either someone who is indicted or someone who is subpoenaed to appear before the grand jury," Kamenar told Fox News Digital.
In 2019, the center lost in the D.C. Court of Appeals in challenging the Mueller appointment and their client–Roger Stone aide Andrew Miller.
Miller opted to comply with the subpoena to avoid prison time for contempt rather than appeal to the Supreme Court.
Still, the NLPC believes the matter should be adjudicated by the high court, arguing the district and appeals court ducked addressing the "Major Question" doctrine.
"We lost in the district court. In the court of appeals, it took four months to decide, and they dismissed in a very short, poorly argued opinion," Kamenar said. "We were not able to appeal to the Supreme Court because our client was faced with prison and he has a family."
A three-judge panel wrote the 16-page opinion from the 2019 Miller case in the U.S. Court of Appeals for the D.C. Circuit.
"Because binding precedent establishes that Congress has ‘by law’ vested authority in the attorney general to appoint the special counsel as an inferior officer, this court has no need than to go further than to identify the specific sources of this authority," the opinion says. "Miller’s cursory references to a ‘clear statement’ argument he presented to the district court are insufficient to present that issue for appeal and it is forfeited."
At issue is whether a special counsel — with the essential power of a U.S. attorney or chief prosecutor — can be named without Senate confirmation. This goes back to the expiration of the independent counsel statute after Ken Starr’s investigation of Clinton.
Congress allowed the statute to expire in 1999. However, then-Attorney General Janet Reno’s Justice Department established a special counsel regulation. But Congress never approved the authority to name a special counsel, or someone outside the Justice Department, who wasn’t confirmed by the Senate.
Only two individuals served as special counsels. Reno appointed former Republican Missouri Sen. John Danforth in 1999 to investigate the raid at the Waco, Texas compound that happened in 1993. Then, in 2017, the 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.
In other cases, such as the Valarie Plame case during the Bush administration, a Senate-approved U.S. attorney, Patrick Fitzgerald, was named as a special prosecutor.
Mueller’s team subpoenaed Miller to appear before the grand jury. The D.C. Circuit Court of Appeals upheld the district court ruling but didn’t address the plaintiff’s argument about whether the Justice Department regulations can authorize the attorney general to appoint a prosecutor without such authorization by Congress.
Kamenar, of the NLPC, contends recent Supreme Court rulings are relevant in affirming that federal agencies are limited in making their own regulations without Congress.
The Supreme Court in 2021 invalidated the COVID-19 eviction moratorium rule by the Centers for Disease Control and Prevention. Earlier this year, the high court struck down a greenhouse gas emission rule from the Environmental Protection Agency. In both cases, the reason was because the matters were not authorized by Congress.
In this case, Kamenar contends that Reno overreached as attorney general with a regulation establishing an office similar to an independent counsel, naming someone outside the department.
As with any regulation and congressionally-enacted law, the special counsel regulation is weaker than the former independent counsel statute.
An independent counsel, who was appointed by a three-judge panel in a 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.
The question doesn’t apply to special counsel John Durham, appointed in late 2020 by then-Attorney General Bill Barr to investigate the origins of the Russia collusion narrative and Steele dossier. That’s because Durham, a career federal prosecutor, was nominated by Trump and confirmed on a bipartisan basis in the Senate to serve as U.S. attorney for Connecticut.
"Jack Smith was not confirmed to a position by the Senate, as opposed to John Durham," Kamenar said. "Bill Barr did the right thing constitutionally in nominating him."
Since Smith’s appointment, several issues emerged about his past. As chief of the public integrity section, he contacted controversial IRS official Lois Lerner in 2010 "to discuss how the IRS could assist in the criminal enforcement of campaign-finance laws against politically active nonprofits," according to a 2014 report by Republicans on the House Oversight Committee about the IRS targeting scandal of tea party groups.
He also led prominent cases against former Virginia Gov. Bob McDonnell over accepting gifts and against former North Carolina senator and 2004 Democratic vice presidential nominee John Edwards for payments to his mistress, the Washington Examiner reported. Both cases ultimately ended in acquittals.
Meanwhile, Smith’s wife, Katy Chevigny, produced a movie about former first lady Michelle Obama.