Lawmakers, Legal Experts Were Skeptical of Legality of Special Counsel Jack Smith’s Appointment

Republican members of Congress and conservative legal experts had long questioned the legality of Jack Smith’s appointment as special counsel. 

On Monday, federal District Court Judge Aileen Cannon of the Southern District of Florida tossed out the federal case involving classified documents against former President Donald Trump, determining that Smith’s appointment was unconstitutional since he was not appointed by a president or confirmed by the Senate.

In December 2022, Republican Sens. Chuck Grassley of Iowa and Ron Johnson of Wisconsin wrote a letter to Attorney General Merrick Garland, who appointed Smith after Trump announced he was running for president.  

“Instead of appointing a special counsel devoid of overtly political connections and professional connections to the very individuals that were involved in opening the criminal matters that apparently [Smith] is now directly overseeing, you chose a special counsel that is wrapped-up into both,” the letter from Grassley and Johnson said. 

The letter noted that Smith previously supervised one of the Justice Department officials responsible for opening election-related investigations into the debunked allegations of Trump-Russia collusion. Further, the letter noted that Smith helped drive a 2014 Justice Department effort in the Obama administration targeting conservative groups.

On Monday, Grassley issued a statement noting that he previously raised the issue.

“Even before the district court ruled on constitutional questions, I raised concerns about political bias at the Justice Department and pointed out that Jack Smith’s record is rife with potential conflicts of interest—-but Biden’s DOJ handpicked Smith anyway. Attorney General Garland has a lot of answering to do for his decision to elevate Smith to prosecute both of DOJ’s cases against Trump,” Grassley said.

Garland never responded to the senators. 

Smith’s office announced late in the day that he would appeal the court’s ruling.

Former Reagan administration Attorney General Ed Meese and two law professors, Steven Calabresi and Gary Lawson, filed a friend of the court amicus brief in December asserting that Garland lacked the power to appoint Smith for a different reason. 

They argued in the brief that Garland has no authority to appoint a “private citizen to receive extraordinary criminal law enforcement power under the title of special counsel.” The National Legal and Policy Center, a watchdog group, argued Smith’s appointment was illegitimate, and made a similar argument in 2018 when former FBI Director Robert Mueller was named as special counsel to investigate debunked allegations that Trump’s 2016 campaign colluded with the Russian government to win the election. Mueller subsequently issued a report in 2019 concluding there was no evidence of Trump-Russia collusion.

It’s not clear whether the federal court ruling in Florida by Cannon will have any impact on the separate Smith prosecution of Trump in Washington, D.C., where federal Judge Judge Tanya Chutkan is presiding, regarding Trump’s challenge to the results of the 2020 presidential election.