INTERVIEW: Jack Smith’s in Charge — Says Who?

By Reuvain Borchardt

Special counsel Jack Smith speaks to the media in Washington about an indictment of former President Donald Trump, Aug. 1, 2023. (AP Photo/J. Scott Applewhite)

Hans von Spakovsky of the Heritage Foundation discusses the constitutionality of Jack Smith’s appointment as special counsel to prosecute Donald Trump, a case being heard by U.S. District Judge Aileen Cannon in Florida.

Trump’s attorneys say the appointment of a special counsel by the U.S. Attorney General violates the Constitution’s Appointments Clause, which gives the power of appointing federal officers to the President and the Congress.

The Appointments Clause says the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Von Spakovsky is a Senior Legal Fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

He was appointed to the Presidential Advisory Commission on Election Integrity in 2017 by President Donald Trump. 

Before joining Heritage in 2008, von Spakovsky served two years as a member of the Federal Election Commission. He previously worked at the Justice Department as Counsel to the Assistant Attorney General for Civil Rights, focusing on voting issues.

A former litigator, in-house counsel and senior corporate officer in the insurance industry, von Spakovsky worked on tort reform and civil justice issues there for more than a decade.

He has testified before state and Congressional committees and made presentations to, among other organizations, the National Association of Secretaries of State, the Federalist Society, the National Conference of State Legislatures and the American Legislative Exchange Council. He also has taught as an adjunct professor at the George Mason University School of Law.

A 1984 graduate of Vanderbilt University School of Law, von Spakovsky received a bachelor’s degree in 1981 from the Massachusetts Institute of Technology.

There actually used to be a federal statute that provided for an independent counsel. The Supreme Court eventually ruled that that statute was unconstitutional, and therefore there is no more independent special counsel. Now there is simply a special counsel occasionally that is appointed by the Attorney General under regulations issued by the Attorney General.

The Supreme Court basically ruled that the way the independent counsel statute was set up violated the U.S. Constitution — and I think the Court was correct about that. So we’re in the situation today where we instead have a special counsel. Remember, the independent counsel didn’t answer to anyone, which was part of the problem with that post under the Constitution. The special counsels we have today, like Jack Smith, are not independent; they’re appointed by the Attorney General, and they’re answerable to the Attorney General, so they’re not really independent in any way. 

They call them “special counsels,” but the crux of the issue is that there is no statute authorizing the Attorney General to appoint some outsider as a special counsel with more power than U.S. Attorneys.

In this case, the argument that’s being made by Trump’s lawyers, which I think is a legitimate one, is that Jack Smith and any other special counsel who is appointed is in violation of the Appointments Clause of the Constitution. The clause says that the President has the power to appoint officers of the United States, with the approval of Congress. 

But there is no statute of any kind creating a special counsel position, and the Attorney General, in the general authorizing statute for the Justice Department, is not given that power either.

So the question is whether the special counsel is an “officer” of the United States, or is he an “inferior officer”? 

He’s clearly an officer of the United States, because he has been given more power than U.S. Attorneys, who are officers of the United States. All of them have to be nominated by the President and confirmed by the Senate — yet they only have power to investigate and prosecute in certain areas of the country. There are over 90 U.S. Attorneys. Their jurisdiction is limited to their district. Yet Jack Smith has been given the power to prosecute anywhere in the country. That gives him more power than a U.S. Attorney, who is an officer of the United States; that clearly makes Jack Smith an officer the United States. Yet he was not nominated by the President, he was not confirmed by the Senate, and that’s why the argument is being made that his appointment violates the Constitution. 

Not only can Smith investigate and prosecute anywhere in the country — and we see that with the fact that he’s pursuing a case both in D.C. and in Florida — but U.S. Attorneys also have a particular budget. They have a set number of lawyers who work for them. But Jack Smith has no such limitations on him. He’s drawing as much money as he wants or needs with no limit on it for his special counsel investigation. He’s got no limit on the number of personnel he can borrow from other parts of the department or hire. So not only does he have a much wider swath of jurisdiction, but he’s got almost no limits on the resources he can draw from the department, plus he does not report to anyone other than the Attorney General.

Hans von Spakovsky

All you’re saying is that perhaps he’s not superior to a U.S. Attorney, but he’s the equivalent of a U.S. Attorney — which still means he has to be nominated by the President and confirmed by the Senate. 

Correct. So it would still be a problem.

By the way, the briefs say it would be one thing if he were brought in to assist a U.S. Attorney in an investigation. In other words, if a current U.S. Attorney who was nominated by the President and confirmed by the Senate was assigned the task of doing this prosecution of Donald Trump, and he wanted to hire Jack Smith to assist him, he could do that, because the principal individual conducting the investigation is the U.S. Attorney, who’s been properly nominated and appointed. But putting Smith into the chief position is the problem. 

The most recent one was Robert Mueller [who investigated allegations of Russian interference into the 2016 election and Trump collusion with Russia.] He was not an employee of the Justice Department.

Other special counsels, people like John Durham [who investigated the FBI’s investigation of the Trump 2016 campaign] were, at the time, employees of the Justice Department. John Durham was a U.S. Attorney. So they weren’t problematic. 

But Robert Mueller’ appointment as special counsel suffered from the same issue that Jack Smith’s does — it’s just that nobody raised it at the time.

Special Counsel John Durham testifies before the House Judiciary Committee, June 21, 2023, after completing his report on the FBI’s investigation of Trump’s 2016 campaign. (AP Photo/Jose Luis Magana)

They can try to do that, but the federal courts usually say that even when the Supreme Court makes decisions like that, they’re not usually retroactive. What you can do is request that a judge overturn a prior conviction. Or, of course, you can request that the President issue you a pardon or commute your sentence. But it’s done on a case-by-case basis.

Yes. I think it’s a very important issue, and I do think the Supreme Court will eventually have to make a decision about this.

Former President Donald Trump speaks during a news conference at Trump Tower, May 31, 2024. (AP Photo/Julia Nikhinson)

Predicting that is a dangerous thing. I really have no idea. I mean, I have no doubt that the three generally liberal justices on the court — Kagan, Sotomayor and Jackson — would rule in Jack Smith’s favor. I suspect that Alito and Thomas would rule against Jack Smith. But how Kavanaugh, Barrett, Roberts, and Gorsuch would rule, I couldn’t predict. 

[Editor’s Note: Days after our interview, the Supreme Court issued a ruling related to Smith’s prosecution of Trump in Washington. While the focus of this case was on the issue of presidential immunity, Justice Thomas wrote a concurring opinion in which he cast doubt on the constitutionality of the special counsel.]

rborchardt@hamodia.com

This interview first appeared in Hamodia Prime magazine.

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