Jack Smith's special prosecutor role is suspect
Dec 21, 2023 12:31:13 #
In an interesting brief filed recently, people that know the law a lot better than Merrick Garland think Jack Smith's appointment is illegitimate and therefore his charges against Trump must be dropped. Jack Smith was not properly appointed.
https://reason.com/volokh/2023/12/20/special-counsel-jack-smmiths-appointment-is-unconstitutional/
The brief outlines four reasons Jack Smith's appointment is unconstitutional. If Smith continues to go after Trump, any result in an inferior court could be fought simply on constitutional grounds at the Supreme court.
First, all federal offices must be "established by Law," and there is no statute authorizing such an office in the DOJ now that the Ethics in Government Act has sunsetted out of existence in 1999.
Second, even if one chooses to overlook the absence of statutory authority for the office, which Jack Smith currently holds, there is also no statute specifically vesting in the Attorney General the power to appoint an inferior officer Special Counsel with the powers that Jack Smith currently has of a Senate-confirmed officer.
Third, the Supreme Court has defined an inferior officer as being one who is directed, supervised, and controlled by a superior officer in Edmond v. United States, 520 U.S. 651 (1997) and in Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010). Attorney General Merrick Garland is not, and cannot under the DOJ regulation under which Smith was appointed, direct and control Jack Smith's activities in a way that satisfies the Edmond test.
Fourth, the Special Counsel is, in all events, a superior, like a U.S. Attorney, rather than an inferior officer, like an Assistant U.S. Attorney, and thus cannot be appointed by any means other than p**********l appointment and senatorial confirmation regardless of what any statutes purport to say.
https://reason.com/volokh/2023/12/20/special-counsel-jack-smmiths-appointment-is-unconstitutional/
The brief outlines four reasons Jack Smith's appointment is unconstitutional. If Smith continues to go after Trump, any result in an inferior court could be fought simply on constitutional grounds at the Supreme court.
First, all federal offices must be "established by Law," and there is no statute authorizing such an office in the DOJ now that the Ethics in Government Act has sunsetted out of existence in 1999.
Second, even if one chooses to overlook the absence of statutory authority for the office, which Jack Smith currently holds, there is also no statute specifically vesting in the Attorney General the power to appoint an inferior officer Special Counsel with the powers that Jack Smith currently has of a Senate-confirmed officer.
Third, the Supreme Court has defined an inferior officer as being one who is directed, supervised, and controlled by a superior officer in Edmond v. United States, 520 U.S. 651 (1997) and in Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010). Attorney General Merrick Garland is not, and cannot under the DOJ regulation under which Smith was appointed, direct and control Jack Smith's activities in a way that satisfies the Edmond test.
Fourth, the Special Counsel is, in all events, a superior, like a U.S. Attorney, rather than an inferior officer, like an Assistant U.S. Attorney, and thus cannot be appointed by any means other than p**********l appointment and senatorial confirmation regardless of what any statutes purport to say.
Dec 21, 2023 13:24:27 #
Do you need really small hands to grasp at straws, like you're doing in your post?
Dec 21, 2023 13:49:57 #
Dec 21, 2023 15:21:35 #
Dec 21, 2023 15:31:13 #
InfiniteISO wrote:
In an interesting brief filed recently, people th... (show quote)
Sounds like you prefer trump declared innocent on a technicality rather than the l
Merits of the evidence
Dec 21, 2023 16:32:29 #
Dec 21, 2023 16:33:39 #
DennyT wrote:
Sounds like you prefer trump declared innocent on a technicality rather than the l
Merits of the evidence
Merits of the evidence
No, I like to see that when the rules of justice are bent beyond all recognition to go after someone that someone stops to say, "Hey, is this even legal?"
Dec 21, 2023 16:35:29 #
The brief was filed by a former US AG. Not grasping, and right now the SCOTUS favors the the rule makers, not the rule benders.
Dec 21, 2023 16:35:31 #
InfiniteISO wrote:
No, I like to see that when the rules of justice are bent beyond all recognition to go after someone that someone stops to say, "Hey, is this even legal?"
So exactly what is illegal?
Dec 22, 2023 09:56:58 #
Frank T wrote:
So exactly what is illegal?
Unconstitutional in reality, Like many of the tactics of the left. The legislation that allowed for the US AG to appoint someone with the power and scope that Jack Smith is exercising expired in 1999.
Let's think of smaller scale example. In many states the state attorney general is an elected position. Imagine if the governor of your state appointed an additional personal AG and that person started handing out indictments to enemies of the Governor. Are those indictments valid? No. They're being issued by someone who is not a real officer of the court because his appointment is unconstitutional.
There are plenty of people that think Jack Smith's indictments will not hold up in court. That may be true, but why risk a jury trial at all if you can get the indictments thrown out?
If you want to reply, then register here. Registration is free and your account is created instantly, so you can post right away.