Could Jack Smith's appointment be unconstitutional?

As everything ends up with the Supreme Court these days its numbers should be increased to cope with the demand. The executive could then be reduced by an equivalent amount and moved out to Brentwood or somewhere to make way for the throngs of black gowned justices.

@flutherother Unfortunately increasing their numbers would likely make things worse and slower. Each case has to be looked at by each Justice. It isn’t like one justice makes the determination. If you increase the numbers, now you have more people that need to look at each and every case, all the evidence and paperwork, sit through hearings AND question all parties. I imagine that would increase the time of each case exponentially.

There seems to be the presumption baked into the question that if Jack Smith’s appointment was unconstitutional, the implication is that any evidence uncovered by Mr. Smith would then be inadmissible. I’m not sure that it would work out that way. I’m not a lawyer and certainly not a specialist in Constitutional law, but this sounds fundamentally different than, say for example, evidence discovered from a search made under false pretenses or based on an illegal search/seziure, or a confession derived from an interrogation in which the suspect wasn’t mirandized.

@gorillapaws “There seems to be the presumption baked into the question that if Jack Smith’s appointment was unconstitutional, the implication is that any evidence uncovered by Mr. Smith would then be inadmissible.” All I can tell you is to check out the two citations I provided. Apparently the ABA believes it would invalidate everything he has done. I’m sure you could find some left wing activist judge that would try to avoid that, but from what I read, everything he has done has been outside of lawful actions. Therefore everything he has done is inadmissible in any court. So all the investigations would have to start from square one.

It’s an interesting question. Meese argues in his brief that “there is no statute establishing the Office of Special Counsel in DOJ,” but the OSC was in fact established by the Civil Service Reform Act of 1978 as part of the Merit Systems Protection Board. There are also several other statutes that acknowledge its existence and either grant authority to or impose regulations on it. While Meese does not directly engage with that fact, other parts of his brief argue that the real problem is the scope of Smith’s authority. But Smith’s particular role was created according to Title 28 of the Code of Federal Regulations, the creation of which is in turn authorized by the Administrative Procedures Act of 1946.

Meese does not engage with the CFR either, but he does engage with the section of the US Code that deals with the Justice Department’s appointment of special attorneys (which, confusingly, comes under Title 28 of that code as well). It seems that his argument must be that the rules in Title 28 of the CFR exceed the authority given by Title 28 of the US Code, and that the US Code clearly holds supremacy over the CFR. It is undoubtedly true that the US Code takes precedent over the CFR in the case of a direct conflict, which means that a lot is going to come down to how the Supreme Court reads the Administrative Procedures Act.

So what are the politics here? For one, Meese has disliked the entire notion of special prosecutors, independent counsels, and special counsels ever since he was investigated by one in the late 80s and had to resign from his position as Reagan’s Attorney General. For another, the Administrative Procedures Act is a common target of conservative lawyers and overturning it is generally regarded by conservatives as being they key to dismantling the administrative state. That the APA could be used to grant Smith such broad authority might seem like an ideal entryway into arguing that the act goes too far to be considered constitutional.

But there’s another possible angle here. Meese is a Reagan conservative and decidedly not a Trump conservative. If Jack Smith’s investigation of Trump is unconstitutional, then so are Robert Hur’s investigation of Joe Biden and David Weiss’ investigation of Hunter Biden. So if Meese is trying to hurt Trump, killing two Biden-related investigations in exchange for one Trump investigation (which very well might be restarted and in any case is only one of many investigations into Trump) might seem like a good deal. And if all three of them were dismissed, it would be up to Merrick Garland to determine which of them to restart. Meese might expect him to only restart the Trump investigation (though I doubt that since he initiated Hur’s investigation himself without notifying the White House in advance).

As for whether or not the investigation would have to start at square one: procedurally speaking, yes it would; but nothing would stop the new investigator from starting with a deposition of Smith in order to greatly speed up the process. And knowing where to look is sometimes half the battle.

@SavoirFaire Nice answer! When I read the rules, it sounds like a Weiss is an unconstitutional appointment as well. Special Counsels need to be someone outside the US Government to preserve impartiality. This comes from 28 CFR 600.3. What I see is that both Smith and Weiss (and possibly Hur) shouldn’t have been Special Counsels at all. They should have been Independent Counsels. That removes bias entirely as they no longer report to the AG. Had that been done, all the cries by Trump that it is a political witch hunt would have far less basis in fact. And Weiss is an acting US Attorney (works for the DOJ/AG) whose impartiality is questionable as his job could be at stake if he goes against Biden. I’ve said that from the start. Hur is a slightly less objectionable person as he is a former US Attorney. But as a special counsel, he still reports to Merrick Garland. So investigating the administration you answer to is still questionable.

By this same logic, Mueller and Durham were both unconstitutional appointments. Maybe I’m old fashioned but I just don’t trust the government to investigate itself.

I do agree with you that procedurally speaking, if Smith’s appointment was unconstitutional, all of his efforts would be undone, but that much of the investigative work could be used, it would have to just follow the basic investigative process. Knowing where to look does indeed help. But interestingly, I’m not sure you could get to the same place. Much of Smith’s knowledge was based on actions he took as Special Counsel. Look at the Mar-a-Lago case for example. He got a whole list of “classified” documents that were found at Mar-a-Lago from search warrants he swore out. Those would be void as well so all that evidence would be moot. Additionally, an actual independent counsel might not have brought that case at all. Using the precedence of Hillary, Biden and Pence for how classified documents cases are dealt with, Trump would have been let go without even a mark in his permanent record.

That’s what makes this case so interesting. How much of what Smith has done would be voided if it is ruled to be Constitutional?

@seawulf595 How much of what Smith has done would be voided if it is ruled to be Constitutional?

IMHO…If his appointment were to be ruled unconstitutional, it seems to me that his work should not be automatically voided.
Any subsequent valid investigation should probably be able to use this as a starting point subject to independent validation of facts and move forward from there.

@Strauss Yes, someone else could start all over. But all the charges would be voided. The search warrants he swore out and executed would all be voided as would all the evidence he turned up with those search warrants. Everything he did, ordered to be done, or signed off on as the Special Counsel would be undone. It would be like if I suddenly brought massive cases against you, complete with court filing, search warrants, FBI raids…the works. And then someone said “Hey, how can Seawulf575 do that? He’s just an average schmoe without the authority to do any of that.”. They’d be absolutely right…I wouldn’t have that authority. And therefore everything I did was illegal.

So no, I don’t agree another investigation would turn up all the same stuff. Some of it would be off limits as it was already illegally obtained. Imagine bringing charges of Trump having classified documents when he doesn’t because they were already seized illegally. Think that would fly? Oops…that case is gone. The same could be said about the J6 case, though starting over from there might have a little more luck even though the case is crap.

On the other hand, if Smith is deemed to be an unconstitutional appointment, Trump would have a case against Smith and Garland personally for civil rights violations. That might even lead to Garland being impeached and having to face a civil suit from Trump. This whole thing could get really ugly.