Q&A of the Day – Why Jack Smith Was Determined to Be Unconstitutionally Appointed

In an era in which we now have the weaponization of the legal system against political opponents, if the appointment of Smith were allowed to stand it would effectively allow future administrations to select literally any attorney off of the street and appoint them to a post that’s effectively the second highest law enforcement position in the country.

Episode Transcript

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Modest answers to questions you won't hereanywhere else. The Q and A of
the day reaction from our government toBrian mus show, I don't get that.
Today's queue and A we dive into why jack Smith was determined to
be unconstitutionally appointed. This is broughtto you by Melissa and Ashes check Mark

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collections. Each day I feature alistener question sent by one of these methods.
You may email me Brian Mudd atiHeartMedia dot com, hit me up
on social at Brian Mud Radio.You may also use the iHeartRadio talkback feature.
Just go to wj NO or VeroPatriot inside the I already app follow
was once you get there. Onceyou do, look for the little microphone

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button. See it, tap it. You may lay down the message right
there, maybe a topic or questionfor future Q and A. Today's note
is this, Hi, Brian,I believe you are the first I heard
discuss Jacksmith's appointment as potentially being uncoinstitutional some time ago. I know,
just as Clarence Thomashell paved the wayfor Judge Cannon's ruling to dismiss the classified

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documents case. But what I haven'theard is a clear explanation as to why
jack Smith's appointment was unconstitutional. Couldyou please address this? Also? Does
this mean that the January sixth casewill be dismissed as well? So yes,
I have touched on this this issuemultiple occasions over the past couple of

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years, but most recently on Junetwenty fifth, when this argument is being
brought before Judge Cannon in court.And I'm going to pick up there because
they laid out the three different legalchallenges that were presented to question Jacksmith's constitutionality.

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As I mentioned on June twenty fifth, I said, there's another question
being considered by Judge Cannon overseeing theclassified documents case that would have the potential
to effectively eliminade both outstanding federal casesagainst Trump, whether Jack Smith was unconstitutionally
appointed by Attorney General Meyrick Garland,and whether he's been illegally funded in the

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two cases he's brought against Trump upto this point. The argument made in
court Monday was effectively this. Asnoted by Boston University's School of Law,
all federal offices must be established bylaw, and there is no statute authorizing
such an office in the DOJ.So there's an argument to be made that

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the creation of any special council's officewithout explicit authorization by Congress, in this
instance involving Jack Smith, the needfor Senate confirmation that it's unconstitutional, and
it's a solid constitutional argument. However, with so many special councils having been
appointed by numerous administrations over the pastfifty years, the established president in place

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probably makes the argument alongshot at best. The next piece of the argument appears
to be a bit stronger. Underthe law granting the Attorney General the authority
to appoint a special counsel, itsays this the Attorney General may appoint officials

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to detect and prosecute crimes against theUnited States. So the Trump team is
arguing that the use of the termofficials means Department of Justice employees. Jack
Smith was not a Justice Department appointeeat the time of his appointment. That
led to the third argument that enteredinto the equation, how jack Smith is

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funded. Jack Smith, previously anon government employee, has theoretically been granted
complete independence from the Attorney General andhas been handed in unlimited budget first cases
against Trump all spending by the federalgovernment must be approved by Congress. So
in essence, he had a nondog employee appointed to a post with an

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unlimited budget from the DOJ at theexclusive discretion of the Attorney General. So
there are three potential constitutional questions aboutthe validity of Jack Smith's role as special
prosecutor that Judge Cannon will now weigh. If any one of them were to
work, it could get Trump offthe hook. Okay. So that establishes

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everything, and it takes us toyesterday's ruling by Judge Cannon. In a
ninety three page ruling issued by JudgeCannon, all charges in the case against
former President Donald Trump w were dismisseddue to a violation of constitutional law by
Attorney General Meyrick Garland in the appointmentof Jack Smith as special prosecutor. In

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Cannon's ruling, she stated, inthe end, there does appear to be
a tradition of appointing special attorney likefigures in moments of political scandal throughout the
country history. So, in otherwords, she didn't bite on the Trump
team's first argument, which I pointedout was a long shot given the president
of special Council appointments. But continuing, she said but very few, if

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any, of these figures actually resemblethe position of Special Counsel Smith. Mister
Smith is a private citizen exercising thefull power of a United States attorney and
with very little oversight or supervision.When scrutinized, this spotty historical backdrop does
not amplify confirm the Attorney General's authorityto appoint the Special Council. Here,

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whatever marginal support the history may lendto Special Counsel Smith's position, the inconsistent
patchwork of practices detailed does not showthat Congress ratified or acquiesced to the Executive's
use of Section five point fifteen toappoint special councils like mister Smith, and
it is far from sufficient to overcomethe plain language of Section five to fifteen,

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which does not confer upon the Attorneygeneral officer appointing power but merely establishes
procedures for already retained special attorneys whoact in an assistant capacity. Special Counsel
Smith is not an assistant. Shealso stated this. She said, for

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more than eighteen months, Special CounselSmith's investigation and prosecution has been financed by
substantial funds drawn from the Treasury withoutstatutory authorization, and to try to rewrite
history at this point seems near impossible. The Court has difficulties seen how a
remedy short of dismissal would cure thesubstantial separation of powers violation. But the

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answers are not entirely self evident,and the case law is not well developed.
Okay, without getting into the nittygrittiness of Section five point fifteen,
which is the legal proceedings, thepremise of Cannon's ruling is this, special
counsels, who effectively operate with nearlyunfettered power and resources once appointed, powers

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greater than those of confirmed US attorneys, should first have been subjected to the
confirmation process any US attorney must undergoin Congress. And this is the most
important point in all this. UntilJack Smith, every appointed special council in

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US history, every one of themhad undergone a constitutional confirmation process at some
point in their careers. And thiswas what Justice Thomas spoke to in his
recent opinion and the presidential immunity rulingwhen he stated, if this unprecedented prosecution
is to proceed, it must beconducted by someone duly authorized to do so

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by the American people. The lowercourts should thus answered these essential questions concerning
the Special Council's appointment before proceeding.That's exactly what Judge Cannon did. The
bottom line is that ag Garland tookthe unprecedented step of enlisting the private citizen
with no prior congressional oversight into therole of Special Council. Had he followed

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president with a previously confirmed attorney,this judgment wouldn't have been rendered. So
for people who may wonder why thisreally matters, consider this and an era
in which we now have the weaponizationof the legal system against political opponents.
If the appointment of Smith or allowedto stand, it would effectively allow future

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administrations to select literally any attorney theywant off of the street and to appoint
them to a post that's effectively thesecond highest law enforcement position in the country.
So, in layman Layman's terms,that's what this is really about.
And as for whether this will disqualifythe January sixth case, the answer at
this point is, here's what happensnext. The federal government is appealing Judge

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Cannon's ruling. That decision will thenbe likely appealed to the US Supreme Court,
which may be where this matter isultimately decided. And meanwhile, in
DC the January sixth case, JudgeShuckin has not gone along with any of
the Trump team's arguments, so she'llproceed with the case to the extent that
she is allowed to do so anyway, setting up a split in the legal

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system, which again points to anappellate court or a Supreme Court ultimately deciding
this matter.