The Washington Times
Tuesday, November 22, 2022


Attorney General Merrick Garland’s appointment of former Assistant U.S. Attorney Jack Smith raises the serious question of whether Mr. Smith is being properly appointed under the Constitution’s appointments clause (“AG Garland appoints special counsel to weigh criminal charges against Trump,” Web, Nov. 18). As a principal officer, he requires appointment by the president and confirmation by the Senate. Even if he is an inferior officer, not only did Congress not give the attorney general authority to unilaterally appoint such a powerful person, but it also specifically let the Independent Counsel Act sunset after Ken Starr’s investigation of Bill Clinton was completed. Attorney General Janet Reno’s promulgation the next day of these spurious special counsel regulations is constitutionally suspect.

While we made a similar challenge to the constitutionality of the appointment of special counsel Robert Mueller, also a former prosecutor, the Supreme Court never ruled on that issue. The D.C. Circuit did rule on it in 2019, but it did not address the issue of whether mere Justice Department regulations can even authorize the attorney general to wield such a power right after Congress failed to reauthorize the Independent Counsel law. At least Attorney General William Barr appointed John Durham, a sitting U.S. attorney, as a special counsel to investigate the “Russiagate” hoax and the Steele dossier.

If subpoenaed or indicted, those within the target of this new special counsel should raise this issue as a defense all the way to the Supreme Court, which has a newfound respect for the major questions doctrine.

Counsel to the National Legal and Policy Center
Chevy Chase, Maryland

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