Jester Politics News Roundup For May 12, 2024

I’ve been wondering about this for a while, and it finally bubbled to the surface.  Jack Smith – the special prosecutor appointed by Merrick Garland to prosecute Trump – maybe unlawfully prosecuting Trump.  Special Counsel Jack Smith is not an officer of the United States.  Instead, he’s an employee of the Department of Justice.  Why is that important, well buckle up.

The President and his department heads can appoint inferior officers of the United States only if Congress gives them the authority to do so.  Superior officers of the U.S. must be confirmed by the Senate.  (U.S. Constitution, Art. II, Sec. 2).  Though Congress has granted the authority to appoint inferior officers to four Departments, they have not granted that authority to the Department of Justice. Nor has Smith been confirmed by the Senate as a superior officer. 

Garland can of course appoint a special prosecutor, but he is limited to appointing one from the 92 USAs that Congress confirmed as an Officers of the U.S.  He did not.

The importance of this is that in Lucia v. Securities and Exchange Commission, (2018) the Supreme court held that only officers of the United States can take actions that affect the life, liberty, and property of citizens.  In other words, as it stands now, only the 92 existing U.S. Attorneys (USA) and the U.S. Attorney General can bring charges against anyone – Jack Smith holds none of these positions.  Yes, I know, these 92 USAs do not personally file each charge, but the attorneys who work for them file those charges in their name.  In other words, each USA approves the charges filed by their AUSA.

This issue has finally come to the surface in the classified documents case against Trump pending before Judge Aileen Cannon, U.S. District Court for the Southern District of Florida.  She has ordered oral arguments for June 21, 2024.  And here is where it gets interesting.  Jack Smith has brought two cases against Trump – one in DC alleging four criminal acts involving January 6, and the one in Florida alleging unlawful possession of classified documents.  But since he is not a U.S. Officer he cannot lawfully do so.

A federal district court judge’s rulings are normally limited to the district she sits in, in this case the Southern District of Florida.  Therefore, if Cannon rules Smith is not an officer of the US and that he unlawfully brought the classified documents case, then that case would have to be dismissed, or stayed while the government appeals the ruling.  But how about the case in DC?  I’m not sure. 

Normally Judge Cannon’s rulings would be limited to the Southern District of Florida.  However, if she finds as a matter of law that Smith is not an officer of the U.S. and therefore, cannot bring an action against Trump, I would think the DC circuit would follow her ruling, or at least put that case on hold until the appeal the government is sure to file runs its course.

To make matters more confusing, whether Smith is an officer of the U.S. was raised in the Supreme Court case on Presidential Immunity in an amicus brief.  Whether the Supreme Court chooses to decide that issue is hotly debated. However, they are faced with a very tricky constitutional question – is presidential immunity absolute, and if not, how sweeping is it?  The Court does not like to address extremely broad constitutional questions.  So, if they want, they can avoid the question by deciding that Smith is not an officer of the U.S., and therefore he unlawfully brought the charges against Trump.  That would make the question of how sweeping presidential immunity is “moot” and left for another day.  

Wish I could tell you how this all ends, alas my voodoo magic is not that strong.  What I can say, is Jack Smith and Garland have screwed both these cases up from the start and with each passing day it becomes less and less likely either will be held before the November elections.