Jack Smith Is Not an ‘Officer of the United States,’ Court Is Told

(Left) Special counsel Jack Smith. (Saul Loeb/AFP via Getty Images) / (Right) Former President Donald Trump. Madalina Vasiliu/The Epoch Times

Special counsel Jack Smith isn’t an “officer of the United States” and the Trump classified documents case should be dismissed, said a constitutional law professor who filed an amicus brief in the Trump classified documents case.

Josh Blackman, a law professor at the South Texas College of Law Houston, wrote that “at most, Smith’s temporary position is properly characterized as a mere ‘employee’” and that Mr. Smith’s prosecution “violates the Supreme Court’s Appointments Clause jurisprudence.”

He also questioned Attorney General Merrick Garland’s appointment of Mr. Smith to head two cases targeting former President Donald Trump, including charges over whether he illegally retained classified documents and charges accusing him of illegally trying to overturn the 2020 election.

“Simply being appointed by a department head does not elevate that position to the status of an inferior ‘Officer of the United States.’ Indeed, the mere fact that a person is appointed by the Head of a Department does not make that position an office at all,” Mr. Blackman wrote, referring to a brief that Mr. Smith had filed in which he described himself as an “inferior officer.” “Instead, precedents ... provide that an office must be continuous.”

Mr. Smith’s position as special counsel “is not continuous,” he argued, adding that “it cannot be an office of any type.”

“In this case, Mr. Smith’s actions as a notionally independent United States attorney are beyond the scope of what the Supreme Court has permitted, and therefore, his actions are unlawful,” he wrote.

The special counsel’s team has not yet publicly responded to the law professor’s arguments. But Judge Aileen Cannon, who is overseeing the case, accepted his brief for consideration, according to a paperless order.

“If our position is correct, then this prosecution can continue, if at all, only under the normal supervision of the politically accountable United States Attorney for the Southern District of Florida,” Mr. Blackman wrote in an article published on Reason.

Similar arguments have been made in amicus briefs, or “friend of the court” briefs, against Mr. Smith’s prosecution. One was submitted to the Supreme Court by former Attorney General Edwin Meese, who said Mr. Smith’s appointment by the attorney general is unlawful, that the case should be dropped, and that he does not have the authority to prosecute cases.

The Meese filing asserted that Mr. Garland “exceeded his statutory and constitutional authority” when Mr. Smith was appointed in 2023 to oversee the two federal cases against President Trump. The statute cited by the attorney general isn’t “remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel,” he wrote.

When he was appointed to be the Trump special counsel, Mr. Smith was a war crimes investigator employed by Kosovo’s government. Previously, he was the U.S. attorney for the middle district of Tennessee.

“The organic statutes governing the Justice Department allow the Attorney General great discretion in moving around on the DOJ chess board currently confirmed appointees. They do not allow the Attorney the power to create an inferior officer Queen just because someone was at some point in the past a DOJ superior or inferior officer,” wrote Mr. Meese, who also submitted a similar amicus brief in connection to the classified documents case overseen by Judge Cannon.

Smith’s Response

In response, Mr. Smith shot down Mr. Meese’s claims that he lacks the authority to prosecute President Trump, describing the arguments as “meritless.”

“Neither Trump’s challenge nor the Meese Amicus’s additional theories are novel or meritorious; to the contrary, every court that has considered them has rejected them, including authoritative decisions by the Supreme Court,” he wrote earlier this month.

“Resolving the validity of the Special Counsel’s appointment would not lead to an accelerated appellate proceeding if Trump’s claim failed. Unlike with a non-frivolous immunity claim, Trump would have no right to an interlocutory appeal should the Court deny his Appointments Clause challenge.”

Mr. Garland previously defended his appointment of Mr. Smith as special counsel in remarks last year, claiming that his “role is completely consistent with the regulations that set forth responsibilities to the attorney general, under the special counsel regulations, and I followed those regulations.”

He also defended Mr. Smith as a “veteran career prosecutor” who has “assembled a group of experienced and talented prosecutors and agents who share his commitment to integrity and the rule of law.”

“As I said when I appointed Mr. Smith, I did so because it underscores the Justice Department’s commitment to both independence and accountability,” the attorney general added.

President Trump faces both federal and state charges in Florida, Washington, Georgia, and New York on a range of issues. He has pleaded not guilty to all the charges, saying they’re part of a politically motivated witch hunt.