On November 18, 2022, Attorney General Merrick Garland purported to appoint private citizen Jack L. Smith to be a Special Counsel with the power of one of the 93 U.S. Attorneys but with nationwide jurisdiction. This makes Jack Smith more powerful than any of the 93 U.S. Attorneys even though they have been Senate-confirmed to their particular offices, and Jack Smith has not been Senate confirmed for the particular office, which he now claims to hold. A close examination of the Justice Department’s (DOJ’s) organic statute makes it clear that, unlike at least four other Heads of Cabinet Departments, the Head of the Justice Department has not “in, the words of the Appointments Clause, been “by Law” *** vested” with the power to appoint inferior officers like Jack Smith who have more power than any of the 93 Senate-confirmed U.S. Attorneys. …

My concern about the legality of Jack Smith’s appointment is both a concern that Trump’s convictions might eventually be overturned by the Supreme Court on appeal, because Jack Smith was unconstitutionally appointed, and a concern that even someone who has conducted himself, in the way that Donald Trump has done, must be tried in a constitutional way. The current Supreme Court has at least six justices who really care about the separation of powers and the Appointments Clause. They think about the Appointments Clause and the separation of powers, which it protects, in exactly the same way as I do, and not as the Burger Court did when it decided the erroneous precedent of United States v. Nixon, 418 U.S. 683 (1974). I think the Supreme Court, when it ultimately addresses these Appointment Clause issues will reach the same conclusion that former Attorney General Ed Meese, Professor Gary Lawson, and I have in the amicus brief, which we filed today in the Supreme Court.

[Wanna bet? If the court now has to overturn this idiotic ruling in Colorado, I’m not sure they’ll want to be too nitpicky on this issue, especially since the Senate retroactively confirmed Smith to a US Attorney position too. The courts declined to decertify Robert Mueller’s appointment (he was also a private citizen at the time), although I don’t recall whether this specific argument was made, in fairness. — Ed]